A mixed verdict

tauringhuang.

Aug 6th 2008 | NEW YORK
From Economist.com

A conviction in the first American war-crimes trial since the second world war

AP
SALIM HAMDAN admitted that he was Osama bin Laden’s driver. But was he a terrorist? Captured in Afghanistan and later transferred to Guantánamo Bay, he has become the first person to hear a verdict from the military commissions set up to try Guantánamo’s detainees. On Wednesday August 6th he was convicted of supporting terrorism, but acquitted of conspiring to commit war crimes with al-Qaeda.

The fact that the verdict was a mixed one might suggest that these are not mere kangaroo courts. Mr Hamdan was a little-educated fellow who may well not have had any access to al-Qaeda’s plans. But a navy officer testified that the defendant had pledged allegiance to Mr bin Laden, and professed his zeal for jihad. Even if he worked at a low level, it seems that he was an enthusiastic cog in a terrorist machine.

Critics of the trials are not placated, however. The composition and procedures of the commissions have improved since they were first conceived by the Bush administration and subsequently ruled to be unlawful by the Supreme Court in 2006 (in a case brought by Mr Hamdan against Donald Rumsfeld). But the court that convicted Mr Hamdan was not allowed to hear allegations that he was interrogated brutally by CIA officers before his transfer to Guantánamo Bay, or indeed to hear mention of the intelligence agency at all. According to human-rights groups the defendant suffered sleep deprivation, harassment and inappropriate touching by a female guard while in detention. His lawyers argued that harsh treatment could render unreliable his confession that he had taken an oath of allegiance to Mr bin Laden.

Although the trial was held in the open, with reporters observing much of it, important chunks were kept secret. The decision rendering Mr Hamdan’s confession admissible in the court was heavily redacted, so observers could not assess why exactly the judge felt the confession was legally sound. Two defence witnesses were made to testify in secret. Mr Hamdan’s lawyers, military men with top-secret clearance, were presented with some evidence just before the trial began. Other pieces were delivered even as the trial was under way. They were not given access to the CIA officers who first held Mr Hamdan. Secrecy is frequently part of military trials, however critics say that in this case the reason was not national security but to protect those who may have authorised brutal treatment of Mr Hamdan.

Mr Hamdan now probably faces life in prison, unless a planned appeal is successful. Attempts, once again, to question the fairness of the commissions could derail trials that are set to follow, of bigger fish, some of whom could face the death penalty. The biggest of them is Khalid Sheikh Mohammed, the self-described mastermind of the 2001 attacks on New York and Washington, DC. He has said that he wishes to receive “martyrdom” at American hands. If he were to be put to death after a trial that is seen as flawed, that appearance of martyrdom could seem to be much the greater. Those who want accountability for the September 11th attacks may come to conclude that the full force of a proper American trial, long and often frustrating though it may be, would render a more satisfying form of justice.