The Hamdan case represents US ‘justice’ at a very low ebb. A concocted commission has ostensibly ‘judged’ a non-existent crime that was also both out of time and out of place. Dual qualified American-Australian lawyer Robert Briggs questions why the international media at least hasn’t taken President Bush to task.

The Hamdan Case: Loaded gun, in unscrupulous hands


By Robert Briggs*

The first US military commission to go to trial has completed its work. Salim Hamdan, a driver in Osama bin Laden’s motor pool, has been convicted of “material support for terrorism” at Guantánamo Bay’s “Camp Justice”. Hamdan was acquitted of the “more serious” charge of “conspiracy”.

The sentence was 5 1/2 years, but with time served this will be completed (though Hamdan won’t be freed) in 5 months.

Most trial observers noted that tribunal procedures did not conform to international standards, as required by the US Supreme Court in 2006 in Hamdan’s own case. Other than that, context was missing. News media – even those opposed to the commissions – repeatedly called the proceedings “war crimes trials”. Yet the Supreme Court ruled, in Hamdan’s appeal against earlier commission charges, that conspiracy – the only thing he was charged with – was not a war crime.

The Supreme Court plurality opinion said that Hamdan could not be charged with (1) conspiracy; (2) anything else (eg, material support) not recognized as a war crime under international law; and (3) anything that did not happen after September 11, 2001, in a theatre of war. Hamdan’s charges in the trial just completed violated all these requirements.

US media might assume the Military Commissions Act 2006 follows US and international law, but it’s a mystery why foreign media and observers should accept this premise, when the US Supreme Court ruled in Hamdan’s own case that commissions must comply with the Geneva Conventions.

Yet none of the media, foreign or US, questioned how there could be a “war crimes trial” when no “war crime” known to the law of war had been alleged, or the fact that the allegations were for periods of time when there was no war. Other Guantánamo prisoners have even been charged with “war crimes” committed outside any theatre of war, without media comment. Some of the claims against Hamdan also failed the theatre test.

Not only were the charges against Hamdan fraudulent and unknown to international law, but they were created after the time the acts were said to have occurred. Both the US constitution and international law condemn that practice.

“Conspiracy” is not recognized as a war crime for good reason. Prosecutors love conspiracy charges because a bare association, coupled with some minor act and a hint of shared intent, can suffice to convict one person for the actions of others, without any direct participation or even knowledge. Two examples are the convictions in US federal court of Zacarias Moussaoui and Jose Padilla.

That’s the reason conspiracy hasn’t been accepted into the canon of international humanitarian law, with very few exceptions. War is all about a common enterprise. Mere association and intent to kill or harm might put ordinary soldiers in prison for the acts of generals and military planners, should those acts be shown to be war crimes, eg, using prohibited weapons or treachery.

This was the frame for Hamdan’s trial. The commission had barely begun when it descended into farce, with credulous journalists producing headlines breathlessly reporting such incriminating evidence as the fact that Hamdan overheard bin Laden saying he was pleased with the September 11th attacks, or the contested claim that Hamdan took a bayat or oath of loyalty to his employer.

A US propaganda video compiled partly from Al Qaeda propaganda videos and purporting to give the history of Al Qaeda since the mid-1990s was put into evidence by the prosecution over defence objections. On the other hand, a full history of Hamdan’s treatment in custody was not allowed, or even possible, since the required documents were only delivered to the defence on the eve of the trial. Mentioning the CIA or questioning its agents was of course forbidden.

Hamdan’s case revealed that he was in fact held for interrogation (not a valid purpose of indefinite detention, according to the US Supreme Court) because he was also one of bin Laden’s bodyguards. Other bodyguards wouldn’t talk, and got sent home, including the chief of all the bodyguards.

Hamdan talked, and helped. His reward? The US created crimes retrospectively (not real war crimes, of course) to apply to Hamdan, and then charged him, using all the things he had told them which, at the time they happened, and the time he told about them, were NOT war crimes.

Of course, authorities are free to question people without warning them of their rights or allowing them legal counsel, so long as they accept that they cannot try them afterwards using the information obtained. But the Bush administration, with the support of highly unprincipled lawyers, decided to have their cake and eat it too, even when torture and compulsion were involved.

Hamdan’s commission “crimes” are different from the status crime affecting most Gitmo detainees (and, even after conviction, Hamdan): the status of allegedly belonging to a notional category of “enemy combatant” which the Bush administration freely admits it created to evade the Geneva Conventions.

For seven years, the Bush administration has tirelessly manipulated the US legal system to prevent any independent factual review of George Bush’s purported classification of Al Qaeda and the Taliban as “enemy combatants”.

By this theory, Salim Hamdan remains an enemy who may be detained. Thus the Bush administration says it will not release Hamdan even after he completes his “sentence”. So what was the purpose of the trial?

It would perhaps not be an exaggeration to say the Bush administration wants to vindicate an unqualified right – which of course they claim they will exercise with restraint – to intern indefinitely anyone the government suspects is hostile to US interests or, stated another way, people who don’t like the US government and (the government claims) might act on that hostility.

It’s the same policy the government used against Japanese-Americans in WWII. Supreme Court Justice Robert Jackson, in his famous dissent in the Korematsu internment case, said,

“A military order, however unconstitutional, is not apt to last longer than the military emergency… [b]ut once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle [which] then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

George Bush is an unscrupulous authority, and the Hamdan decision – unless reversed – may prove to be a loaded weapon.


Robert Briggs is legally qualified in both the USA and Australia. A member of CLA, he is a regular commentator on significant legal cases, particularly American jurisprudence with ramifications for Australia.

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