FEIN: Judgment at Guantanamo

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By Bruce Fein

COMMENTARY:

It was altogether fitting that a military commission's verdict in the war crimes trial of Salim Ahmed Hamdan, Osama bin Laden's erstwhile driver, was rendered on Aug. 6, 2008.

That date marked the 63rd anniversary of the atomic bombing of Hiroshima. Its five-year death toll approximated 200,000, emblematic of the frightful horrors of World War II when the existence of Western civilization lay in the balance. Upon witnessing an atomic test at Alamogordo, N.M., father of the bomb, J. Robert Oppenheimer quoted from the Bhagavad-Gita: "Now I have become death, the destroyer of worlds."

President Bush and Vice President Richard Cheney had decreed that even if there were only a sub-zero chance al Qaeda was tantamount in its lethality and danger to an atomic bomb, the United States must treat that probability like biblical gospel. Mr. Bush had chronically sermonized that al Qaeda's threat was indistinguishable from a murderous cocktail of Vladimir Lenin, Josef Stalin, Adolf Hitler, Emperor Hirohito, Leon Trotsky and Benito Mussolini.

Whereas Hitler had his Wolf's Lair in East Prussia, Osama bin Laden has his cave in Afghanistan or Pakistan. The sole difference is that Osama has no Wehrmacht, i.e., the Nazi Heer, Kreigsmarine, Luftwaffe, and Waffen SS, supplemented by V-1 or V-2 rockets.

Defense Secretary Donald Rumsfeld had affirmed that Guantanamo Bay's detainees were the "worst of the worst," aiming to evoke images ranging from Attila the Hun and Genghis Khan to Herman Goering and Heinrich Himmler. All would be slated for Dante's seventh circle of hell.

A semi-dress rehearsal for Hamdan's trial was the case of Australia's wayward youth David Hicks. In the maiden Guantanamo prosecution before a military commission, he pleaded guilty to the war crime of providing material support to al Qaeda by training in one of its camps. Hicks had never killed or threatened an American, and received a nine-month sentence to be served in Australia.

Mr. Bush had proclaimed that Hicks was too dangerous to warrant trial in a civilian court with the trappings of due process to ensure reliable verdicts. Civilian prosecutions and convictions had been obtained against international terrorists Ramzi Yousef, Sheikh Rahman, Zacarius Moussaoui and Jose Padilla. But the president's "gut instincts" had confirmed that Hicks was more demonic.

The military prosecutors of Hamdan may have recalled the post-World War II Nuremberg trial for crimes against humanity and war crimes. It featured a murderers' row of squalidness and devastation: Goering, Joachim von Ribbentrop, William Keitel, Rudolph Hess, Albert Speer, Erich Raeder and Karl Doenitz, among others. Here was a chance for a repeat performance, and bring them the same fame as Nuremberg's Chief Prosecutor Robert Jackson.

It was true that Jackson had declined to prosecute Hitler's driver, Erich Kempka, as a war criminal. The driver's knowledge of Hitler's devilish and endless violations of international law did not make Kempka's customarily innocuous conduct sufficiently reprehensible to constitute a war crime. An opposite conclusion would have meant Hitler's chef, pianist, tailor and grocer should also have been in the dock, and cheapened the moral statements made by war crimes prosecutions.

Hamdan, however, was not a carbon copy of Kempka. The terrain in Afghanistan raises more treacherous driving challenges than does the Autobahn. Further, Hamdan was one of Osama's bodyguards.

After the Bush-Cheney-Rumsfeld build-up, the Hamdan verdict by a panel of six military officers was anti-climactic. He was acquitted of conspiracy to kill Americans in Afghanistan in 2001 with shoulder-fired missiles. He was acquitted of conspiracy to perpetrate the Sept. 11, 2001, abominations. But he was convicted of material support for terrorism, a charge that has not historically been part of the international law of war - the law entrusted to the military commission.

Indeed, material support charges are regularly prosecuted in civilian courts. Section 2339B of the federal criminal code makes it a felony to provide "material support or resources" to a designated foreign terrorist organization. Hamdan could have been prosecuted under that section, as was Jose Padilla, in a civilian court without establishing a precedent that threatens to militarize justice and cripple due process.

Before sentencing by the panel, military judge Capt. Keith J. Allred ruled that Hamdan would be given credit for 61 months of pretrial incarceration. With that credit, the panel imposed a sentence of five months, a term commonly associated with driving while intoxicated. There will be no cinematic "Judgment at Guantanamo" sequel to the Academy Awards winning "Judgment at Nuremberg."

During the Civil War, President Abraham Lincoln maintained that for certain extraordinary cases the ordinary course of civilian law must be set aside for military measures to prevent the Constitution from going to pieces. Hamdan was not one of those rare cases. His trial before a military commission denuded of due process was petty and unbefitting a great power. But George W. Bush is no Abraham Lincoln.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and author of "Constitutional Peril: The Life and Death Struggle for the Constitution and Democracy" (Palgrave Macmillan).