How Civilian Trials & International Law Can Work for Terrorists


Salim Hamdan, who was Osama bin Laden’s driver and bodyguard from 1996 – 2001, left Yemen in 1996 to join al-Qaida in Afghanistan. He knew that he was driving and guarding our worst enemy. Hamdan knew about bin Laden’s public declaration of war against the United States and general attack plans.

Hamdan was captured and turned over to the U.S. in November, 2001. In 2004, President Bush ordered him tried by military commission. He was convicted and, in August 2008, sentenced to 66 months. He was released in Yemen in November 2008.

Hamdan’s lawyers contested it and said it was not lawful under the Uniform Code of Military Justice (UCMJ) and Common Article III of the Geneva Conventions.

That petition, to have the case heard in our civilian court, was granted in November, 2004 on the grounds that the military tribunal was not legitimate. There were disagreements over the terms “POW” and “enemy combatant.”

The government then reasoned that Hamdan was not entitled to access to federal courts since he was not a prisoner of war but rather an enemy combatant. Further, the government argued that the Geneva Conventions did not apply, since the conventions only addressed international wars instead of conflicts against terrorists.

Since then, the case worked it’s way through our civilian justice system and the Court of Appeals. In 2006, Congress passed the Military Commissions Act in order to put Hamdan on trial with a military tribunal instead of a civilian court.

In 2006, the Center for Constitutional Rights, a Progressive Organization, and other human rights groups, filed an amicus brief citing the Geneva Convention as assigning certain rights under the Supremacy Clause of the Constitution. [People who think treaties cannot overpower our laws need to think again].

The court at that time found that in accordance with the conventions, Hamdan must be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” They found that the tribunal under which he was tried was unlawful.

On October 16th, 2012, a federal appeals court comprised of a three judge panel, overturned Hamdan’s conviction for providing material support for terrorism.

The court found that the actions for which he was charged were not criminal until the 2006 enactment of the Military Commissions Act. The Constitution forbids retroactive punishment.

The panel said he should have been charged with aiding and abetting a war crime. They also found that military commissions are not consistent with and contrary to the UCMJ in that they excluded the accused from hearings and denied the accused access to the evidence presented against him.

Basically, the court said Hamdan was not a war criminal under international law and was not committing the crime at the time of his arrest.

There are seven other GITMO prisoners who were convicted under the Military Commissions Act. Five pled guilty and another one, Ali Hamza al-Bahlul, chose to go to trial. It is likely his conviction will be overturned. Bahlul was Osama’s propaganda and media person.

The Center for Constitutional Rights has praised the decision. It is a victory for Progressives everywhere as they use the Constitution and a treaty to exonerate some bad guys.

I doubt we’re bothering to capture the bad guys and gather intel. We do drop drones on them, so much better than that horrid waterboarding.

Read the story at Guardian UK

Read the ruling here.