Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
I confess to being utterly shocked by the outcome of the first case to be completed under the Military Commissions Act at Guantanamo Bay. The case of Salim Hamdan, who was Bin Laden's driver, has stunned me on two levels. First, the verdict: the jury split, finding him guilty on the less serious charge of "supporting" terrorism but not guilty of the more serious charge of conspiracy to commit specific terrorist acts, including 9/11. The government argued that he was an "Al-Qaeda warrior" while the defense argued that he was just a bit player doing a job without any real connection to any acts of terror.
Second, the sentence: the jury, made up of American military personnel, sentenced Hamdan to only 5 1/2 years when they could have sentenced him to life in prison for the charge they found him guilty of. With time served, Hamdan is eligible for release in 6 months:
A U.S. military jury sentenced Osama bin Laden's driver Thursday to just 5 1/2 years in prison, a surprise rebuke to Pentagon prosecutors who portrayed him as a member of the al-Qaida leader's inner circle worthy of a life sentence.Salim Hamdan, with credit for time served, will be eligible for release in less than five months, though U.S. authorities still insist they could hold him indefinitely without charge at Guantanamo.
The judge, Navy Capt. Keith Allred, called Hamdan a "small player," and the jury apparently agreed, rejecting the recommendation of 30 years by prosecutors who said even a life sentence would be fitting in order to send an example to would-be terrorists.
"I hope the day comes that you return to your wife and daughters and your country, and you're able to be a provider, a father and a husband in the best sense of all those terms," Allred told Hamdan at the close of the hearing.
The prisoner, dressed in a charcoal sports coat and white robe, responded: "God willing."
It was an anticlimactic finish to a case that had taken on a special prominence as the first Guantanamo war crimes trial. The Pentagon pushed forward with Hamdan's prosecution despite repeated legal challenges that went to the Supreme Court in a 2006 case that struck down the previous rules for the tribunals, prompting Congress and President Bush to craft new ones.
The split verdict on the charges and the relatively lenient sentence appeared to strip away the urgency of the government's plans to prosecute dozens of Guantanamo prisoners under special rules widely criticized as unfair.
Again, I'm shocked by this. It leads me to two conclusions, one firm and one tentative. The firm conclusion is that it is clear that even members of our own military are not buying the notion that anyone rounded up in Afghanistan or Iraq and sent to Gitmo is a dangerous terrorist. That is a very good thing and speaks highly of the integrity and sense of justice of our men and women in uniform (because you know damn well there was serious pressure, explicit or implicit, on them to ratify the government's position).
The tentative conclusion is that perhaps these tribunals aren't as bad as originally suspected. Despite the obvious attempts by government prosecutors to rig the outcome and rely on unsubstantiated evidence, they couldn't get their way even on a guy who had admitted to being Bin Laden's driver. I don't know. This is a tentative, perhaps overly hopeful thought at this point. But if the military judges and juries continue to take the interests of justice as seriously as they did in this case, perhaps we will reach the almost ironic conclusion of having the Bush administration's flagrant overreaching undermined by the military.
There is one thing, however, that makes that second conclusion as tentative as it is: the Bush administration still claims that it has the authority to keep Hamdan locked up despite the verdict and sentence in this case. And it would not surprise me at all if they do just that. Or that he'll be released and then mysteriously disappear. Nothing would shock me at this point.
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What grounds are would they keep him on?
Posted by: King of Ireland | August 8, 2008 9:19 AM
This is possibly not as surprising as one might imagine. The famed criminal defense attorney, F. Lee Bailey once wrote that if he were innocent of a crime of which he was accused, he would much prefer to be tried by a military court martial then by a civilian jury.
Posted by: SLC | August 8, 2008 9:24 AM
Re a NYTs report I predict will infuriate some Americans:
The fact it came from a military judge rather than a Carter or Clinton appointed federal judge should make it even more infuriating since they won't be able to frame this within their worldview. I anticipate some future efforts by social conservatives to assassinate Judge Allred's character similar to how they went after Judge Jones who presided over the Dover trial.
Posted by: Michael Heath | August 8, 2008 9:32 AM
KOL stated:
That he's an enemy combatant in a war on terror where the war has not yet ended. The rationale for the argument is after his release he could rejoin his comrades in their war against us.
Posted by: Michael Heath | August 8, 2008 9:36 AM
I'm sure OBL needs his cabbie back after all these years.
Posted by: Blaidd Drwg | August 8, 2008 9:40 AM
Before concluding these tribunals are doing their job, let's wait to see if a real terrorist, sentenced to life, serves that sentence or is released early due to the higher courts determining that these tribunals violated American principles of justice. There is absolutely no reason that terrorists can't be tried and convicted in the usual criminal courts. The Blind Sheik and his accomplices in the first WTC bombing are serving life sentences.
Posted by: Russell | August 8, 2008 9:47 AM
Michael Heath:
"That he's an enemy combatant in a war on terror where the war has not yet ended. The rationale for the argument is after his release he could rejoin his comrades in their war against us."
This is crazy. What is the "War on Terror" ? It would be like sentencing Stalin's housekeeper during the "Cold War". These titles for wars are so vague that they are never ending and allow almost anything domestically and internationally to justify the ends. Since I have a deep suspicion that we are in another era of "Manifest Destiny" where we use religion and bull shits rationalization to steal people's shit and tell them it is good for them, this all makes me very suspicious. I wrote about this some on this under Osama Bin Laden: Freedom Fighter or Terrorist? at kingofireland12.blogspot.com
Posted by: King of Ireland | August 8, 2008 10:01 AM
The part that most infuriated me was a story I saw on cnn.com yesterday. The Pentagon is claiming that they can hold him indefinitely as an "enemy combatant." If that's true, why bother with this show trial in the first place?
And isn't "enemy combatant" a term that the Bushies made up in the first place? You know, a term that translates to "someone we define to be a bad guy that we can do anything we want with, and nobody can tell us not to."
Posted by: Dave | August 8, 2008 10:08 AM
Now that the trial is over, the way is opened up for the appeals courts to straighten out the rules for these trials. I wonder if in the course of those appeals he will be able to get a ruling that will free all the "enemy combatants" unless serious charges can be filed.
In the long run, that way be the worst loss the Dubya administration will get out of this trial.
BTW, I agree completely with KOI's post (Just this once ;-) )
Posted by: BaldApe | August 8, 2008 10:32 AM
Exactly.
Posted by: Tophe | August 8, 2008 10:53 AM
Ed,
First let me say thanks for all you do keeping everyone informed on current events.
I have lurked here for some time and for the most part agree with your assesments.
But, as a 20 year veteran of the US Air Force I feel insulted that you would be "shocked" that we have integrity. Did you think all military personell are like the leaders of the government?
Again, thanks for everything!
Posted by: Brad Coble | August 8, 2008 10:59 AM
To be clear, I was not promoting the Bush administration's position on their having the power to hold Hamdam indefinitely, I was merely describing the Administration's stated rationale in reply to a question on what that rationale was.
Posted by: Michael Heath | August 8, 2008 11:03 AM
Regarding Hamdan being out in 6 months, and the Pentagon (i.e., Bush) saying he'll stay locked up as an enemy combatant, don't forget that 6 months is after Inauguration Day, so Bush won't have any say in it (assuming that Hamdam is not "disappeared" before then).
It might be an interesting question to ask McCain about what he'd do about Hamdan if he wins.
Posted by: Ahcuah | August 8, 2008 11:05 AM
The fact that they assert the right to keep this guy locked up even after trial and serving his sentence shows exactly what an appalling sham the whole procedure is. Seriously, there is absolutely no fucking point in having a trial and passing sentence if you're going to assert that you can keep the defendant locked up forever anyway.
I'm shocked too - shocked that Ed would relegate this obvious travesty of justice to the final paragraph, and only regard it as reason to regard the hope that these tribunals aren't completely unjust as a "tentative conclusion". You've just been explicitly told that the outcome of the trial doesn't actually matter a damn, and you're hoping that the trials aren't going to be as bad as you expected? What fucking difference does it make? All the legal niceties in the world aren't worth a damn if they're not going to let you go anyway, even after serving your sentence.
Posted by: Dunc | August 8, 2008 11:13 AM
If the tribunals are not as bad as expected, it may very well be because people fought him on the issue and got the SC to slap him down 3 times instead of just letting him do it the way he wanted to from the start.
Posted by: libarbarian | August 8, 2008 11:14 AM
You shouldn't be. This is exactly the same verdict that David Hicks got. He's been sentenced to time already served plus however long it is until just after the next election.
Posted by: Pseudonym | August 8, 2008 11:19 AM
Can't wait till they lock Prez "King George II"'s doorman for life, for "furthering terrorism" or whatever bullshit charge.
I'm NOT holding my breath. Apparently sauce the goose ain't sauce for the gander. -DJ
Posted by: DingoJack | August 8, 2008 11:35 AM
What a contrast from the responses on right wing site Breitbart. A typical response there was along the lines of "prbbobly Obama supporters. Chritians are under attck! We shuld throew hymn out of a helicopter at 8000 feet!"
Posted by: soboco | August 8, 2008 11:57 AM
Next up, a Canadian citizen who was arresting in Afghanistan when he was 15 years old.
Cab drivers and child soldiers being brought before military commissions... I think Canada should be digging a moat along the 49th.
Posted by: Gordon S | August 8, 2008 12:07 PM
Having spent 3 years as an attorney in the Army's Judge Advocate General Corps, I am not at all surprised by the integrity shown by the court members and military judge in this case. My experience with the Army justice system was that you are taking from a more conservative jury pool but a generally better educated one that takes duty on the court as seriously as they do protecting the soldiers they lead. The court members generally started out giving greater credence to government witnesses (i.e. the "police") than civilian juries might but, if they came to believe the government was not doing it's job, they'd "punish" it just the same way the court members were punished for not doing theirs.
You mean they haven't started already? They're way late!
Posted by: John Pieret | August 8, 2008 12:31 PM
Next up, a Canadian citizen who was arresting in Afghanistan when he was 15 years old.
After hearing that the judge in this case instructed the jury that (to paraphrase) fighting back is not a war crime, I've got hope that he'll be acquitted entirely, given that it appears that the gist of the case against him was that he intended to throw a grenade at a U.S. soldier.
Not that he should have been picked up in the first place, but sometimes you take it where you can get it.
Posted by: Cathy W | August 8, 2008 1:07 PM
I have to admit, I was pretty surprised too. Only 5 years? For a guy like Hamdan? That is amazing! I've never heard of such a thing. OTOH, the whole trial seems to have been based on pretty farcical evidence. OBL's driver, for heaven's sake. It's doubtful, unless OBL is incredibly dumb, that he would actually tell the guy anything of any importance. People like that never do.
Anne G
Posted by: Anne Gilbert | August 8, 2008 2:08 PM
Ed, you're stunned? Why; simply because military officers showed that they possessed personal honour?
The cards were stacked against Hamdan, because of the lame "material support" legislation, or there may not have even been a split decision against him.
Think about what you are implying though. There are many career military officers who firmly believe in the Dreamtime America, and no matter what the consequences, will honour their oath to Defend The Constitution; Against ALL Enemies, Foreign and Domestic. Contemplate the nightmare facing many of these Americans presently, and do them justice in your analysis.
Posted by: a knight | August 8, 2008 2:19 PM
Re: a knight
I don't think that Ed was implying that military officers would be expected to act dishonorably. It was simply that the entire process was rigged as much as humanly possible by the administration to get the outcome they desired, plus the fact that I'm sure there was pressure on everybody involved to achieve that outcome.
I think that this is waking people up. Looking over at freerepublic, there are a fair number of people that said this was a fair sentence, and who are also wondering why this was the first case tried by these vaunted military courts. If this is the best the administration has...
Posted by: Brian | August 8, 2008 2:52 PM
As a former military brat, and a brother of career Air Force officer and enlisted man, I am not surprised by when members of the military demonstrate a sense of honor and commitment to defend the Constitution. It is, however, a pleasant surprise when they show some sign of agreeing with most of us who are posting here about what the Constitution is all about.
Posted by: bpilgrim | August 8, 2008 3:05 PM
Well let's be honest after this last administration can you really blame people (liberals especially) if they expect conservatives to be disingenuous scumbags? Also the military is supposed to be rather conservative, and anyone would reasonably assume that the civilian administration would push them as much as they could on this case.
So yes, it is somewhat surprising to me that the military obviously has *far* more integrity then the corrupt administration it has to serve. Good for them, and everyone else in this country.
Posted by: Coriolis | August 8, 2008 3:27 PM
Apology Ed, old fires are hard to keep down at times. I was just a conscript chopper doc a long time ago, but I had a meet with the JAG, because of a loud comment I made to a Captain in public, who had a rep for being loose with his men's lives, about what I believed was a much more appropriate place for him to be awarding the Silver Stars he loved to dish out posthumously. A NCO who witnessed the exchange went out of his way to speak, not in my defense, but on my behalf, without being asked, and I got off with just long lectures from both the JAG and the NCO. That's just one of many personal stories I could relate about careerist military personnel.
I never asked to get drafted, and in all honesty, would have never enlisted, but the great majority of military officers I came into contact with, while serving and since, showed that in large, they are a group who take pride in their personal honour, and firmly believe in the U.S. Constitution. It sounds hokey as hell, but they do believe in Truth, Justice and The American Way.
Posted by: a knight | August 8, 2008 3:43 PM
"The tentative conclusion is that perhaps these tribunals aren't as bad as originally suspected"
The fact that the human element of the process acted in the interests of justice doesn't change the fact that the process itself is a corruption of justice.
Posted by: Felix | August 8, 2008 4:03 PM
We aren't arguing.
Posted by: Nentuaby | August 8, 2008 7:27 PM
@bpilgrim above:
Your take on this is nice to hear. I got mustered into and out of the USCG within a month back in 1970 so I can't claim to be a grizzled veteran. Luckily that status is not necessary for me to understand the importance of defending the Constitution. Not that the document and the assertions it contains are sacred; they are certainly, upon inspection, not. And it's not that the men who plotted together to construct such a wicked division of powers were somehow touched by some numinous something. It is precisely that the Constitution simply is the set of rules that in fact do set limits and assign responsibility and define accountability. The ground rules. The starting point.
Given the history of success that this set of rules has and given that anyone who wants to can, without violating the rules, accomplish great things, it seems reasonable, maybe vital, to give any benefit of uncertainty in the law to the citizen as opposed to the benefit constantly accruing to the government.
The law as it has been made for us contains two important elements. First, that government should not limit the natural expression of freedom of its citizens. Second, and indispensable, is the notion that each citizen is expected to enjoy his own freedom at his own expense.
To attain liberty and happiness is generally considered to be a good thing. One who has done so is frequently regarded as one who has chosen wisely. But one, who, in pursuit of some perceived reward extracts the cost from sources not personally owned and is then publicly revealed can make no claim of the reward and has chosen unwisely. The gain is hollow because the effort to claim it was dishonest, based upon claiming the work of others as one's own.
To encode such reason into the pact by which we the people have a means to ensure a transparent and non-threatening government is the key to our success as a nation. To not defend such a set of rules would be national suicide. The oaths and enhanced patriotism of most military personnel give reason to hope that a sense of justice and of the limits of the law will continue to be exhibited somewhere in the US justice system.
Tell your brother "Thanks" for his service for me.
E Pluribus Unum
Posted by: Crudely Wrott | August 8, 2008 9:58 PM
Brad Coble wrote:
Not all of them, no. But I still would be very surprised if a greater percentage of the military didn't show enormous deference to the executive branch than the general public. It's part of their training. So yes, I am surprised that the jury found what it did; I would have expected that at least a portion of them would have felt differently. I'm very glad to be wrong though. I'm not surprised by the behavior of the JAG corps; the JAG corps has been pretty consistent in standing up for justice in the last few years.
Posted by: Ed Brayton | August 8, 2008 11:14 PM
But, as a 20 year veteran of the US Air Force I feel insulted that you would be "shocked" that we have integrity.
I share Ed's amazement. In an age when the political integrity of the American Supreme Court is in question, it is a great testament to those involved that American military tribunals have maintained some sense of decency and perspective, even under extreme political pressure from the office of the Command in Chief. For those of use looking from the outside in, the actions of those involved appear, not only to have integrity, but also to be positively heroic.
Posted by: ed r | August 9, 2008 10:59 AM
But, as a 20 year veteran of the US Air Force I feel insulted that you would be "shocked" that we have integrity.
I share Ed's amazement. In an age when the political integrity of the American Supreme Court is in question, it is a great testament to those involved that American military tribunals appear to have maintained some measure of decency and perspective, even under extreme political pressure from the office of the Command in Chief. For those of use looking from the outside in, the actions of those involved appear, not only to have integrity, but also to be positively heroic.
Posted by: ed_r | August 9, 2008 11:01 AM
The traditional military always have had a morality consistent with their profession. They had to or lose all ability to relate their 'work' to the good of their country; even when that might not have been politically astute.
Unquestioned obedience likewise was always the drill for cannon fodder, not leaders.
That said, "My country,right or wrong" guarantees wrong.
Posted by: opit | August 10, 2008 4:14 PM