If winning the “war on terror” (at best a clumsy, blundering quest) involves convicting the drivers and bodyguards of Osama bin Laden, the empire planners in Washington might as well go into speedy retirement.
Yemeni citizen Salim Hamdan, convicted by a jury of American military officers last week after a two-week trial by military commission at Guantánamo Bay, has much to complain about, though not as much as was initially supposed. Given his detention in the Cuban facility without trial for years, the time he will serve will be less than five months.
The catch is this: being an “unlawful combatant”, another legally slippery term, Hamdan could be detained indefinitely. The abyss that is Bush’s law may well continue, though it is hard to see the next presidential administration tolerate such a state of affairs.
Hamdan’s story provides the template of the Bush Administration’s law-averse politics and the “war on terror”. Captured in Afghanistan in November 2001 with surface-to-air missiles in his car, he found himself in shackled detention in Guantánamo Bay in May 2002. Eight counts of supporting terrorism and two counts of conspiracy were subsequently filed, though the prosecution made a hash in seeking to prove any conspiracy whatsoever.
To the verdict then. Hamdan was found guilty on five counts of aiding terrorism by serving as bin Laden’s armed bodyguard and driver in Afghanistan whilst knowing that his employer was intent on attacking the United States. The Yemeni was cleared of conspiracy after some eight hours of jury deliberations.
During the proceedings, the US Department of Justice prosecutor John Murphy addressed the officers by describing Salim Hamdan, the equivalent of a celebrity-obsessed delivery boy on mission, as one of a band of “enthusiastic, uncontrollably enthusiastic warriors”. Hamdan, in a speech, suggested that his alleged ‘jihadi’ zeal was less important than his need of money.
Defense lawyer Lieutenant Commander Brian Mizer called this a case of a low-level employee who worked for low wages between 1997 and 2001. Not a single witness contradicted Hamdan’s claims that he had never been a member of Al Qaeda or responsible in any way for the terrorist attacks.
Mizer had also unearthed troubling material prior to the trial suggesting that Hamdan was little more than a sacrificial lamb for the 2008 elections. In late March this year, he alleged in a military commission brief that Deputy Defense Secretary Gordon England put to lawyers how they needed to “think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election.” The Pentagon’s silence on this score was deafening.
Despite the insistence by the White House that the commissions abide by a framework of international law, mandated by the Supreme Court (in the case of Hamdan v Rumsfeld decided in 2006), the system remains glaringly deficient. Evidence was admitted by the commission that would never had seen the light of day in a civilian or standard US military court, another elastic addition to the undermining of law by the Bush Administration. Allegations that the CIA had engaged in brutal conduct against Hamdan on route to detention were not heard. Crucial parts of the trial were also held in secret.
The Hamdan trial is an own goal for this terminal administration. A mixed verdict doesn’t necessarily make it a just one. Nor does being a driver make one a member of a terrorist network, let alone complicit in terrorist attacks. Wobbly reasoning continues to remain the province of the illegal and specious.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College, University of Cambridge and taught history at the University of Queensland.