Justice -- The Hamdan Verdict

August 8, 2008

by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Benjamin Armbruster, Ali Frick, and Ryan Powers

JUSTICE

The Hamdan Verdict

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On Wednesday, a military jury at Guantanamo Bay found Osama bin Laden's former driver, Salim Hamdan, guilty of material support for terrorism in the first "contested" U.S. military war crimes trial since World War II. Hamdan was acquitted of the more serious charge of conspiracy to commit terrorist attacks and murder American soldiers. Yesterday, he was sentenced to five and a half years in prison. But because he has already been held for 61 months since first being charged, he "could complete his punishment by the end of this year." The Bush administration has "seized on the acquittal to defend its military justice system against accusations that it was politicized and drawn up to ensure convictions," but critics contend that the acquittal actually "underscores the fact that we learned more during this trial about the feebleness and bankruptcy of the Bush administration's fight against terrorism than we did about Salim Ahmed Hamdan or al-Qaida." Ken Gude, Associate Director of the International Rights and Responsibility Program at the Center for American Progress Action Fund, wrote that because Hamdan "never denied that he was bin Laden's driver," it "would have been an open and shut case of material support for terrorism in federal court." Instead, the Bush administration "chose to pursue the risky path of an untested military commissions system" that "devalued the concept of a war crime" and handed down a conviction that is "constitutionally vulnerable."

INDEFINITE DETENTION?: Though Hamdan's criminal sentence ends in five months, "after that his fate is unclear" because "the Bush administration says that it can hold detainees here until the end of the war on terror." On Tuesday -- the day before the jury decided Hamdan's case -- Pentagon spokesman Geoff Morrell said that "even if he were acquitted of the charges that are before him, he would still be considered an enemy combatant and therefore would continue to be...subject to continued detention." Whether Hamdan will continue to be detained after he serves his sentence is up to a Pentagon review board that will "determine if Hamdan is no longer a threat and can be freed." One Pentagon official indicated to MSNBC that Hamdan is not likely to be let go, saying that "he won't be going anywhere anytime soon." But "defense lawyers and rights advocates say the US government would come under intense international pressure to release Hamdan once he serves his sentence." Col. Morris Davis, who formerly served as the chief military prosecutor at Guantanamo Bay, says that "it remains to be seen whether the administration intends to keep Hamdan past the end of his sentence" but that "doing so begs the question of why we even bother to hold trials."

COERCED EVIDENCE ALLOWED: "Unlike in civilian courts, incriminating statements that Hamdan made to interrogators were admitted into evidence even though he was not warned that they might be used against him." At the same time, the judge in Hamdan's case, Navy Capt. Keith J. Allred, "was put in the unprecedented position of deciding how much torture was too much in determining which of Hamdan's statements made during 'coercive' interrogations would be allowed into evidence." In July, Allred threw out statements from Hamdan that "were obtained under 'highly coercive' conditions while he was a captive in Afghanistan," but "declined to suppress admissions made by Hamdan after he arrived" at Guantanamo Bay. The result was that, "in certain circumstances, evidence obtained under interrogation methods that were 'cruel' and 'inhuman'" was allowed in the trial. Legal experts believe that decision in Hamdan's case "could put the government at a disadvantage in future military trials of al Qaeda leaders subjected to far more coercive conditions, such as waterboarding." This means that when 9/11 plotter Khalid Sheikh Mohammed "is brought before a military commission, the entire focus of the world's attention will be on the problems and the unfairness of the system. Not on his crimes," according to Jennifer Daskal of Human Rights Watch.

WAR CRIMES REDEFINED: Though the military jury found Hamdan guilty of a war crime for materially supporting terrorism by serving as bin Laden's driver, he "was acquitted of providing missiles to al Qaeda and knowing his work would be used for terrorism." In 2006, after Hamdan successfully challenged the Bush administration's military commissions at the Supreme Court, Congress passed the Military Commissions Act, which, among other things, labeled material support for terrorism as a war crime for the first time. According to a Congressional Research Service report issued last year, "Defining as a war crime the 'material support for terrorism' does not appear to be supported by historical precedent." Former Justice Department lawyer Marty Lederman observed that charging material support for terrorism as a war crime "is a fairly radical theory." According to Gude, the result is "that the Bush administration has completely devalued the concept of a war criminal." "Charles Taylor is a war criminal. Radovan Karadzic is a war criminal. Salim Hamdan is a chauffer. He is clearly guilty of the crime of material support for terrorism. But now he has been elevated to the status of warrior, legitimizing al Qaeda terrorists' belief that they are waging a holy war against the United States and our allies," Gude said.

IRAN -- REPORT: IRAN'S NUCLEAR FACILITIES COULD NOT BE EFFECTIVELY DESTROYED BY STRIKE: A study to be released today by the nonpartisan Institute for Science and International Security has found that "Iran's uranium facilities are too widely dispersed and protected -- and, in some cases, concealed too well -- to be effectively destroyed by warplanes." This study comes just a day after the Associated Press reported that "Israel is building up its strike capabilities" and "appears confident that a military attack would cripple Tehran’s atomic program, even if it can’t destroy it." The study notes that "any damage to [Iran's] nuclear program could be quickly repaired," and that "an Israeli or U.S. attack would result in broader popular support for Iran's ruling clerics and could lead Tehran to sever ties with the U.N. nuclear watchdog." David Albright, the principal author of the report and a former U.N. weapons inspector, explained that in response to a strike, "Iran would likely launch a 'crash' program to quickly obtain nuclear weapons." "An attack would likely leave Iran angry, more nationalistic, fed up with international inspectors and nonproliferation treaties, and more determined than ever to obtain nuclear weapons," he said.

IRAQ -- U.S. REPORTEDLY NEAR AGREEMENT WITH IRAQ ON WITHDRAWAL TIMELINE: When asked on Tuesday about Iraqi Prime Minister Maliki's recent endorsement of a timetable for U.S. withdrawal from Iraq, President Bush said, "I talk to him all the time, and that's not what I heard." According to news reports, however, U.S. and Iraqi officials are nearing "completion of negotiations on a security agreement that...foresees all U.S. combat troops gone from Iraq by 2011." The proposed agreement "calls for Americans to hand over parts of Baghdad's Green Zone -- where the U.S. Embassy is located -- to the Iraqis by the end of 2008," "would also remove U.S. forces from Iraqi cities by June 30, 2009," and envisions "all American combat troops leaving Iraq by October 2010." One U.S. official explained, "[O]ur willingness to talk about dates and goals has helped" move negotiations forward after a two-month "standstill." Under the current terms of the agreement, "U.S. troops would be immune from Iraqi law while they were on their bases, but when moving outside the bases their actions would be subject to American and Iraqi military jurisdiction." An anonymous Iraqi official commented, "Remember that we've been through this before and every time we close a deal it's reopened." The status of forces agreement is needed "to replace a UN mandate authorizing the presence of the U.S. troops, as it will expire on December 31."

ENERGY -- ROVE BASELESSLY CLAIMS DEPARTMENT OF ENERGY SAID OFFSHORE OIL DRILILNG WOULD LOWER PRICES: On Wednesday on Fox News, former top Bush adviser Karl Rove discussed gas prices and energy policy. Co-host Alan Colmes noted that conservatives like Rove just want to drill for more oil with the "hope that seven years from now we bring down the price which President Bush's Energy Department says it wouldn't do." Rove then became agitated, arguing with Colmes: "The EIA does say that drilling would bring down prices. You're wrong on your facts." But it's actually Rove who is wrong -- or misleading at best. The group Rove cites to back up his "facts" -- the Energy Information Administration -- reported that new drilling couldn't likely start until 2018, and won't ever have much impact on oil prices. "Because oil prices are determined on the international market, however, any impact on average wellhead prices is expected to be insignificant," the agency noted. In regards to drilling in the Arctic National Wildlife Refuge, another idea championed by conservatives, the EIA observed that oil production there "is not projected to have a large impact on world oil prices."

Russian troops invaded Georgia, after "Georgian troops launched a major military offensive Friday to regain control over the breakaway province of South Ossetia." The developments raised the question of how the U.S. will react, given that Georgia is "an American ally whose pursuit of NATO membership has angered the Russians."

"The Justice Department investigation into the firings of nine U.S. attorneys has been extended to encompass allegations that senior White House officials played a role in providing false and misleading information to Congress," raising the possibility "that investigators will pursue criminal charges against some administration officials."

Former New York Times reporter Judith Miller, famous for reporting on Iraq's purported WMD in the run-up to the invasion, is "back on Iraq and back in big-circulation print. In the July Reader's Digest, she reports how great things are in U.S.-run detention facilities." Miller "reports that life in two detention camps housing nearly 23,000 suspected insurgents is much improved."

Iraqi Shi'ite cleric Muqtada al-Sadr announced he would disband his militia if the United States agreed to timetable for withdrawal. "It should not be considered an end to the Mehdi army," a spokesman for al-Sadr said, about the militia's ceasefire, "but it’s a halfway step to dissolving the Mehdi Army. If the U.S. began to implement a withdrawal timetable we shall complete the path to dissolution."

A new liberal organization dubbed "Accountable America" will reportedly "confront donors to conservative groups, hoping to create a chilling effect that will dry up contributions." Tom Matzzie, who heads the group, explained, "We want to stop the Swift Boating before it gets off the ground."

"A racially charged Democratic primary campaign ended Thursday" with incumbent congressman Steve Cohen (D-TN) "trouncing the opponent who ran an ad linking him to the Ku Klux Klan. Unofficial results showed Cohen with 79 percent of the vote to 19 percent for Nikki Tinker.

According to U.S. military documents, "at least 17 detainees held at Guantanamo Bay were subjected to a program that moved them repeatedly from cell to cell to cause sleep deprivation and disorientation as punishment and to soften detainees for subsequent interrogation." The technique "was still used months after it was banned at the facility in March 2004."

And finally: Bradley Blakeman, formerly an aide to President Bush and president of Freedom's Watch, said that the "plot and marketing elements of the Kevin Costner and Kelsey Grammer movie 'Swing Vote' were stolen from him." Blakeman claims that in 2006, he gave a copyrighted script called "Go November" to Grammar, who agreed to "develop the project and star as an incumbent Republican president but ended up portraying a similar role in 'Swing Vote.'"

A draft U.S. regulation "that would define many forms of contraception as abortion will not be proposed in that form, if at all, Health and Human Services Secretary Mike Leavitt said." The draft, "which was denounced by family planning groups, was circulated before he had seen it and would be rewritten."

THINK PROGRESS: Note to Dept. of Homeland Security: Searching a laptop is not the same as searching a backpack

WONK ROOM: Framing of polls on energy solutions guides coverage.

THE PLANK: Ron Suskind's new book reveals that President Bush's White House has its own interrogation room.

MEDIA MATTERS: Fox News's Brian Kilmeade falsely claims that President Bush "never even said there's a link between al Qaeda and Iraq."

OHIO: "There is a problem with the touch-screen machines to be used in half of the state's 88 counties."

WISCONSIN: "Wisconsin's voter registration system is now fully functional and complies with federal law."

CIVIL RIGHTS: Three states will decide in November whether to end affirmative action programs.

"The Energy Information Agency [sic] which is a respected nonpartisan branch of our government does say if we expanded supply, it would reduce the price."
-- Karl Rove, 8/5/08

VERSUS

"Any impact on average wellhead prices is expected to be insignificant."
--Energy Information Administration, 2007

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The Hamdan Verdict

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