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A Tyrannical Farce at Gitmo


In the first trial held in the Pentagon’s “judicial” system at Guantanamo Bay, Salim Hamdan, Osama bin Laden’s driver, was acquitted of conspiracy, convicted of providing “material support” to a U.S.-named terrorist organization, and given a 5 ½ year sentence, with credit for the 5 years of time that Hamdan has already served at the Gitmo prison. That means that he could conceivably be released from custody within 5 months.

Some people are claiming that the verdict and sentence in the Hamdan case prove that the Gitmo “judicial” system is fair and just after all.

Nothing could be further from the truth.

After all, one can never know what an ordinary jury in U.S. federal court would have done following the Federal Rules of Procedure, the Federal Rules of Evidence, the Constitution, and the Bill of Rights. It is entirely possible that such a jury would have acquitted Hamdan not only of the conspiracy charges but also of the material support charge. After all, if a military jury concluded that Hamdan, who has a fourth-grade education, didn’t conspire with bin Laden to commit the 9/11 attacks, it is entirely possible that an ordinary jury might have concluded that Hamdan didn’t know that President Bush had denominated al Qaeda as a terrorist organization.

If a constitutional jury had acquitted Hamdan of all charges, would people still be claiming that 5 ½ years in jail for an innocent man was fair and just?

Ultimately, the fairness of a verdict in a criminal case turns on the fairness of the proceedings by which the accused is tried and convicted. By violating the procedural rights and guarantees in the Bill of Rights, the Gitmo proceedings stink to high heaven.

Secret trials. Secret proceedings. Secret evidence. Secret testimony. The use of evidence acquired by torture and coercion. No right to confront witnesses. The use of hearsay evidence. No right to summon witnesses. No right against self-incrimination. A presumption of guilt. No right to bail. No right to trial by jury. And the power to ignore the verdict of the jury by keeping an acquitted defendant in custody.

Pardon me for being blunt, but isn’t all of this the hallmark of the judicial systems of Nazi Germany, the Soviet Union, Communist China, North Korea, and Cuba? Who among us would defend the fairness of “judicial” proceedings in those countries?

There’s another important procedural guarantee that was violated in the Hamdan case, one that the mainstream media never bothers to mention: the Eight Amendment’s right to a speedy trial.

Notice how long Hamdan has languished in prison without a trial — five years! That’s right — five years without a trial. Why did it take five years to bring a person in custody to trial?

Did the length of time that Hamdan has been imprisoned have an effect on the tribunal’s verdict? How could it not? The jury was composed of military officials whose career depends on securing favor with the president, the secretary of defense, and the Pentagon.

So, here’s the picture: They arrest a guy and keep him in jail for 5 years, denying him a trial the entire time. They continually tell the world that he is one of the world’s most dangerous terrorists. They tell the military officials on the jury that even if the jury acquits him, they will continue to keep him in prison as a dangerous terrorist.

Under those circumstances, what were the chances that a jury consisting of military officials whose careers were on the line was going to say, “You’re wrong. You’ve kept an innocent man in jail all this time”?

The chances of an acquittal were nonexistent. Hamdan never had a chance of an acquittal of all charges.

Moreover, keep in mind that this was the first Gitmo case to go to trial. How would it have looked to acquit the accused of all charges?

Ask yourself why the Pentagon decided to throw in the “material support for terrorism” charge late in the game. It’s entirely conceivable that they knew that they lacked any credible evidence to establish Hamdan’s guilt on conspiracy charges but needed to give the jury a way to convict and show leniency in such a way as not to embarrass the president and the Pentagon.

In fact, the “material support” charge itself is ridiculous. If the “war on terrorism” is a real war, as U.S. officials have long claimed, then aren’t opposing forces on the battlefield entitled to use drivers? Were drivers who drove Nazi generals around committing war crimes? Why, even Hitler’s driver wasn’t prosecuted at Nuremberg. Neither was his cook or barber.

In fact, providing “material support for terrorism” has never been viewed as a war crime. Instead, what the Pentagon did is simply lift the charge from the federal statute books, which contain the criminal laws that Congress has enacted for prosecution in federal district courts.

So, Hamdan has been convicted of a federal criminal offense that Congress intended to be tried in federal court as a criminal offense and that has instead been arbitrarily converted by the Pentagon into a war crime without the consent of Congress.

Of course, it might be argued that Hamdan wasn’t wearing a uniform. But he wasn’t charged with that. And let’s not forget that in the “war on terrorism,” CIA officials don’t wear uniforms either. Does that make them war criminals in the “war on terrorism”?

The Pentagon’s entire “judicial” system at Gitmo is nothing more than a tyrannical farce. The sooner it’s extinguished, the better off everyone will be.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.