[Ppnews] Salim Hamdan's Sentence

[Political Prisoner News]

http://www.counterpunch.org/worthington08082008.html

August 8, 2008


Does It Signal the End of Gitmo?


Salim Hamdan's Sentence

By ANDY WORTHINGTON

In a decision that will shock those watching the 
conclusion of the first full U.S. war crimes 
trial since the Nuremberg Trials, the military 
jury that convicted Salim Hamdan of providing 
“material support for terrorism” on Wednesday has 
sentenced him to serve five and a half years in 
prison. Given that the judge in his case, Navy 
Capt. Keith Allred, had earlier ruled that he 
would be given credit for time served since 
Hamdan was first charged under the Commission 
system in July 2003, this means that he will be 
eligible for release in five months’ time.

The verdict will do nothing to convince the many 
critics of the Military Commission trial system 
that it is valid -- as there remain too many 
issues with the Commissions’ use of hearsay and 
coerced evidence, of secret testimony, and of 
attempts to justify elevating “material support 
for terrorism” to the level of a war crime, 
despite no precedent for doing so -- but it must 
surely come as a relief to those who thought that 
the jury might have been persuaded by prosecutor 
John Murphy, who argued that Hamdan’s “penalty” 
should be a sentence of at least 30 years, 
something “so significant that it forecloses any 
possibility that he reestablishes his ties with terrorists.”

Instead, the sentence is close to the length of 
time proposed by Hamdan’s defense lawyer Charles 
Swift, the former military lawyer who brought 
down the Commissions’ first incarnation as 
illegal in the Supreme Court in June 2006. Swift 
argued that Hamdan should receive a sentence of 
less than four years because “his cooperation 
with U.S. intelligence services more than 
outweighed his culpability as a member of [Osama] bin Laden's motor pool.”

This is, I believe, an extremely important point, 
as it was apparent during Hamdan’s 
<http://www.andyworthington.co.uk/2008/08/06/a-critical-overview-of-salim-hamdans-guantanamo-trial-and-the-dubious-verdict/>two-week 
trial that he had been exploited by those seeking 
to prosecute him, who had built a case against 
him through his own words. At issue was the Fifth 
Amendment protection against self-incrimination, 
which has been denied to all those deemed “enemy 
combatants” in the “War on Terror.” While this 
remains unacceptable -- and is intimately 
connected with the dark heart of the 
administration’s deliberate policy of shredding 
the Geneva Conventions to facilitate the illegal 
interrogation of prisoners (whether coercively or 
not) -- what made it particularly troubling in 
Hamdan’s case was that, whereas other, 
non-cooperative prisoners had been released from 
Guantánamo without ever incriminating themselves, 
Hamdan was being punished for his cooperation.

While legal challenges to the system will be more 
muted as a result of this verdict, it is unlikely 
that Hamdan’s defenders will be persuaded not to 
pursue their many, valid complaints about a 
system which, as Charles Swift explained today, 
remains nothing more than “a made-up tribunal to try anybody we don’t like.”

However, what this sentence also achieves, which 
was previously unconceivable, is to cap the 
disturbingly open-ended nature of the 
administration’s detention policies, in a way 
that was only previously managed through a plea 
bargain -- that of the Australian David Hicks, 
who, in the first of the Commission trials 
following their resuscitation in the fall of 2006 
in the Military Commissions Act, received a 
nine-month sentence to add to the five years and 
three months he had already spent in U.S. custody.

Until now, the administration has maintained 
that, if it wishes, it has the right to hold 
“enemy combatants” without charge or trial until 
the end of hostilities, which, it has also 
admitted, might last for generations. A sentence 
has now superseded that open-ended policy. If one 
of Osama bin Laden’s drivers gets a sentence of 
seven years and one month in total (five and half 
years plus the 19 months of his imprisonment 
before he was charged) in a system specifically 
established by the administration to try and 
convict “terror suspects,” it is surely now 
inconceivable that those who planned the whole 
post-9/11 detention policy can maintain that they 
can still continue to hold him as an “enemy 
combatant” after his sentence has been served -- 
or, for that matter, that they can continue to 
hold any of the 130 or so prisoners in Guantánamo 
who have not been cleared, and who are not 
scheduled to face a trial by Military Commission, beyond the end of the year.

With this sentence, it appears that the death 
knell has just been sounded for the whole malign Guantánamo project.

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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