Yesterday a military panel rendered a split decision in the prosecution before a Guantánamo military commission of Salim Hamdan, the chauffeur of Al Qaeda leader Osama bin Laden. In the first war crimes prosecution brought by the United States since the close of World War II, Hamdan was accused of participation in an Al Qaeda conspiracy that included attacks on the United States on September 11, on the U.S.S. Cole and the East African embassy bombings as well as of material support. The six military panelists acquitted Hamdan on the major charges of conspiracy, which were the only charges originally brought against him. They convicted him of material support on the grounds that he was in fact bin Laden’s chauffeur. The case now goes into its sentencing phase.
Boy, good work! But it's kind of like a $100,000 DNA test to prove your kid took a cookie out of the jar:
After six and a half years in which the name “Guantánamo” has become badge of shame and humiliation, there has at last been a prosecution–of an individual whose role was at best completely peripheral. The former chief Guantánamo prosecutor has now openly acknowledged that an independent, objective prosecutor never would have charged Salim Hamdan, because he was an absolute nobody. This is not to say that Hamdan is an innocent, of course.
Scott Horton, the author of these words goes on to contrast how Attorney General Robert Jackson handled the first Nuremberg prosecutions.
Moreover, it isn't clear that in a world actually governed by the rule of law that Salim Hamdam would be guilty of any war crime:
[I]t is not clear that Hamdan's conduct of "material support" to terrorism (and, in Specification 2, to al Qaeda), in the form of of transportation and "body guard" services, was conduct that violated the laws of war in the period from 1996 to 2001. Judge Allred ruled (see page 2 here) that if such conduct was not a war crime at the relevant time, then Congress is barred by the Ex post Facto Clause from designating such conduct as a war crime after the fact. Were these forms of "material support" to terrorist acts -- or, even more broadly,to an organization that commits terrorist acts (Specification 2) -- a violation of the laws of war between 1996 and 2001? A very interesting and important question. See pages 3-6 of Judge Allred's opinion, in which he holds that even though there is no recognition of such a war crime in any international instruments, or U.S. field manuals, and even though the Congressional Research Service found no historical support for it, there is some evidence of similar "support" conduct being tried by military tribunals in the Civil War, and thus it was within Congress's broad authority under the Law of Nations Clause to determine that such conduct was a war crime when Hamdan acted. Whether that holding is correct will be a major issue on appeal.
Some commentators believe that the government's case that "material support" was a war crime is baloney.
Spot wrote before that we'll see Salim Hamdan's name in a US Supreme Court caption again.