Osama bin Laden's driver Salim Hamdan was convicted at Guantánamo Bay yesterday - in his second trial at the hands of the Bush administration.
Had his first in 2004 not been interrupted by a successful appeal to the Supreme Court, he would have been acquitted. For what he has been found guilty of -- providing material support to terrorism -- was not then under the jurisdiction of the military tribunal that has sentenced him.
Such is justice under George W. Bush. Such is the justice that awaits Omar Khadr and 80 others to be tried by the special military tribunals at Guantánamo.
More than the detainees, though, it is the Bush administration that's on trial. Thus the United States is on trial. There, the verdict is already in: Guilty.
Guilty of torturing detainees. Guilty of obtaining evidence from torture. Guilty of introducing hearsay evidence in trials. Guilty of hiding evidence from the detainees.
Guilty, therefore, of violating the most basic norms of the rule of law -- and betraying American values.
It's precisely because of all of the above that Bush concocted his kangaroo courts, avoiding both the civilian courts and the military courts martial, both of which would have ensured due process.
"It all stems from the administration's decision to endorse torture," says Jameel Jaffer, a Canadian who directs the American Civil Liberties Union's national security project. "These tribunals are the fruit of that poisonous tree.
"Once the decision was made to use torture, the administration needed a system of rules that would allow them to rely on evidence obtained from torture. Thus these military commissions."
But what happens in these trials is almost irrelevant. The process is discredited. It is seen as illegitimate by much of the world, including a majority of Canadians and an increasing number of Americans.
As for the Muslim world, where the war against terrorism counts the most, it will engender even more fury.
When Bush opened Guantánamo in 2002 to house the prisoners captured in Afghanistan and elsewhere, he declared them to be "unlawful enemy combatants."
He stripped them of their Geneva Convention rights and also argued that they be denied habeas corpus, the old principle that a prisoner must be brought before a court to justify his detention.
In 2004, the Supreme Court ruled that the detainees did have that right. But Bush got the Republican-controlled Congress to pass the Detainee Treatment Act (2005), stripping the detainees of habeas corpus.
In 2006, the Supreme Court ruled that Bush did not have the authority to set aside the Geneva Conventions when he set up his 2002 military commissions.
But Congress granted him just such authority, passing the Military Commissions Act. It essentially resurrected his military commission system, authorizing them to prosecute for terrorist crimes, including the provision on which Hamdan has now been convicted.
Bush has had two tracks going at Guantánamo: one for those charged with war crimes and another, through the Combatant Status Review Tribunals, for those who haven't been charged and may never be.
The latter was ostensibly an alternative to habeas corpus. Except that it wasn't. The detainees could not have legal counsel. They could not have access to evidence either.
The system was so rigged that a military member of one of the panel quit, saying the tribunals were a farce and, in some instances, fixed.
A study done by Seton Hall University School of Law -- "No-hearing Hearings" -- was instructive. Of the 102 tribunal hearings it analyzed, only three led to the detainees being declared "no longer enemy combatant." (The Bush administration, averse to admitting a mistake, would not say that a person was never an enemy combatant.)
Even in those three cases, the Pentagon ordered a new tribunal and the detainee was duly deemed an enemy combatant. In one, the detainee was found to be "no longer an enemy combatant" by two tribunals, so a third was convened and it found him to be an enemy combatant.
Meanwhile, another court challenge on behalf of the detainees was making its way to the Supreme Court. In June, it ruled that Bush's tribunals were not an adequate alternative to habeas corpus.
Yet the sham trials continue.
Jaffer: "The most absurd thing is that if, by some miracle, Hamdan had been found guilty on all counts, acquittal wouldn't have meant liberty. He'd have just been moved to a different cell. The trial was essentially meaningless because the administration takes the position that it has the right to hold enemy combatants until the end of the war on terror, whether or not they have been convicted of crimes."
All this is tragic. Some of the defendants may have committed horrendous crimes. Yet their sentences will carry little or no moral authority. This wouldn't have been the case had the administration gone through ordinary courts or the courts martial system.
The American criminal justice system has been perfectly capable of dealing with complicated terrorism cases. The perpetrators of the 1993 World Trade Center bombing and the 1995 Oklahoma City bombing were prosecuted in the courts.
In the post-9/11 period, Richard Reid (the shoe bomber), Zacarias Moussaoui (9/11 co-conspirator) and Joe Padilla (the dirty bomber) were all prosecuted by the courts and are in jail.
-- Haroon Siddiqui
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