Saturday, January 06, 2007

Whatever happened to him, Spotty?

Who do you mean grasshopper?

You know, Spotty, the guy in Hamdan v. Rumsfeld.

Oh, grasshopper, he resigned the day after the election.

No, not Donald Rumsfeld--the other guy!

Of course, grasshopper, Spotty was just kidding. Spotty says we won't be hearing from Salim Hamdan again for a long time, if ever.

Why Spotty? I thought he won that case.

He did grasshopper, but the only thing he really won was a trial in front of a legislatively-created tribunal rather than a kangaroo court established by the administration. Because Hamdan won the case, the Congress adopted the Military Commission Act in October of this year which, among other things, had the effect of ratifying Hamdan's continued administrative detention and ultimate trial in front of a military commission.

Just before Christmas, a federal district court dismissed Hamdan's habeas corpus petition, saying that the Military Commissions Act deprived it of jurisdiction over Hamdan. Back into the soup for Salim! Amnesty International had this to say about the dismissal:
Amnesty International is deeply troubled by yesterday’s ruling by a federal judge dismissing Guantánamo detainee Salim Ahmed Hamdan’s habeas corpus petition, on the grounds that the Military Commissions Act, signed into law by President Bush on 17 October, strips the federal courts of jurisdiction to consider such appeals.

The right of all detainees to challenge the lawfulness of their detention is among the most fundamental principles of international law. That any legislature or any judge anywhere should countenance such stripping of this basic protection against arbitrary detention, secret custody, torture and other ill-treatment is shocking and must be challenged.

Salim Hamdan, a Yemeni national taken into custody in Afghanistan in November 2001, has been in US custody for five years. Like the more than 400 other detainees still held in Guantánamo, the lawfulness of his indefinite detention has never been judicially reviewed. Like many other detainees, Salim Hamdan has been subjected to ill-treatment in US custody, including prolonged isolation in the US Naval Base in Guantánamo, Cuba.
It isn't clear, to Spot anyway, whether these military commission will really provide due process or not.

Do you want to talk a little more about Salim Hamdan's case specifically, grasshopper?

Sure, Spotty, that would be great.

Well, as you may remember, Salim Hamdan was Osama bin Laden's chauffeur. This much he admits, but he denies any role in the September 11th attacks.

Hamdan was charged with "conspiracy to commit offenses triable by a military commission." There is apparently no claim that Hamdan himself committed any war crime, but that he was, in effect, part of the enterprise.

Here's where it gets interesting, grasshopper. Conspiracy to commit a war crime is, well, not a war crime!

You're kidding again, right Spotty?

Nope, grasshopper, not this time. Here's part of what former Ambassador for War Crimes and Northwestern University School of Law Professor David Scheffer said in the linked Jurist article:
Since the newly established military commission before which Mr. Hamdan is being prosecuted must, by its own terms, remain limited to adjudicating “violations of the law of war and other applicable laws by military tribunals,” the first requirement of any such judicial body must be to frame the charges correctly given its limited jurisdiction. That is why it has been so astonishing to see the government’s charge sheet against Mr. Hamdan repeatedly invokes a crime that does not exist - under U.S. or international law. There is no crime of conspiracy to commit war crimes.
If the federal district court doesn't have jurisdiction over Hamdan, a military commission might not either.

Gosh, Spotty, could Hamdan fall between the cracks?

Well, grasshopper, it appears that he's fallen into a pretty big one already, hasn't he?

Now, one of the bright lights in the Congress recognized they had a problem on their hands with characters like Salim Hamdan. Congress put provisions in the MCA codifying war crimes, saying that the enumerated crimes were merely a restatement of existing international law on the subject. It included the crime of conspiracy:
CONSPIRACY.—Any person subject to this chapter who
conspires to commit one or more substantive offenses triable
by military commission under this chapter, and who knowingly
does any overt act to effect the object of the conspiracy, shall
be punished, if death results to one or more of the victims,
by death or such other punishment as a military commission
under this chapter may direct, and, if death does not result
to any of the victims, by such punishment, other than death,
as a military commission under this chapter may direct.
But Congress just made this one up. Somebody is going to figure out that attempting to apply a new conspiracy law to Salim Hamdan for conduct that took place prior to the enactment of the MCA would make it an ex post facto law.

The subtext of this, boys and girls, is that the US is holding a lot of people that we suspect are war criminals, but we'd be hard pressed to prove it fair and square. Take Hamdan for example: he was captured by the Northern Alliance in Afghanistan and turned over to the United States. Are there any witnesses that can actually testify that Hamdan committed a war crime? Are there any documents or video or audio recordings of him committing a war crime?

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