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The Media's Response to the Hamdan Trial: Due Process or Dictatorial Sideshow?

09/11/2008 05:12 am ET | Updated May 25, 2011

As the Olympics and the war in Georgia threaten to sweep all before them, the significance of the lenient sentence handed down by a military jury to Guantánamo prisoner Salim Hamdan in the first full US war crimes trial since the Nuremberg Trials -- and the government's response to it -- is in danger of being overlooked.

There was, of course, a flurry of activity on Wednesday and Thursday when the military jury, in the system specifically designed by the White House to try "enemy combatants" in the "War on Terror," first dismissed the charges of conspiracy against Hamdan, and then proceeded to hand down a sentence of just five and a half years for material support for terrorism. This leaves Hamdan with just five months to serve, taking into account the time he has already served since he was first charged in July 2003 under the first, failed version of the Military Commission system, which was ruled illegal by the US Supreme Court in June 2006.

Throughout the media, there was a widespread understanding that the government had overstated the case against Hamdan -- in Newsweek, for example, Michael Hirsh asked incredulously, "Is driving a car a war crime?" -- and that, despite the verdict, there remain fundamental flaws with a system that allows the use of coerced evidence and hearsay.

However, my major concern, as a journalist and author (of The Guantánamo Files), who has been studying these issues in detail for several years, was that the media would overlook the administration's shocking response to the verdict: its assertion that it has the right to continue to hold Hamdan as an "enemy combatant" after his sentence has been served.

This is an assertion which, if allowed to proceed unchallenged, will demonstrate that the Commissions are nothing more than a sideshow, and that what propels the administration beyond all other concerns is its pursuit of dictatorial powers, defending its self-appointed right to seize anyone anywhere as an "enemy combatant," and to imprison them indefinitely.

On this key issue, I'm pleased to note that the US media has seen fit to challenge the administration. Of particular relevance is the opinion of the Wall Street Journal, which, while mounting a stout defense of the Commission process, stated in an editorial, "Hamdan could be held indefinitely as an enemy combatant, but the political explosion that option would touch off makes it all but untenable."

While the WSJ made sure that it couched its opinions in terms of what others' response would be to holding Hamdan after his sentence ends, rather then the fundamental injustice of doing so, others were prepared to probe the issue more deeply. In the Washington Post, Josh White sought the Pentagon's response, noting that the Department of Defense was aware of problems relating to the proposal to continue to hold Hamdan after his sentence runs out. "Defense Department officials said there are concerns about the public perception of holding Hamdan after his prison term runs out," White wrote, "because it could label the military commissions a 'show process' with no meaning to its sentences."

White also spotted a note of caution in a statement by Pentagon spokesman Bryan Whitman, who "said it has always been the Defense Department's position that detainees could be held as enemy combatants even after acquittal at military commissions or after serving a prison sentence." "That's always been on our minds in terms of a scenario we could face," Whitman said (emphasis added), although he then proceeded to reiterate the administration's standard line: that Hamdan "will serve his time for the conviction and then he will still be an enemy combatant, and as an enemy combatant the process for potential transfer or release will apply."

For balance, White spoke to Nancy Hollander, attorney for the "high-value detainee" Abdul Rahim al-Nashiri (accused of planning the attack on the USS Cole in 2000), who told him that "it would be 'totally unfair' for the government to hold Hamdan indefinitely." "We had a court. We had a jury. It was a military jury. They heard the evidence. They gave him five months," Hollander explained. "That ought to be his sentence. Either we believe in American justice or we don't."

In an editorial, the Post's editors criticized the Commissions and called for the system to be brought to an end, and also laid out their own opinion about Hamdan's continued detention. "The president may yet try to extend Mr. Hamdan's detention," the editorial stated, adding, "The Supreme Court has determined that the executive may hold without charge those, such as Mr. Hamdan, designated as enemy combatants." While refusing to question this legislation, stating, "We support the executive's prerogative to do so," the editors proceeded to insist that "it would be unnecessary and unwise to exercise that power in Mr. Hamdan's case. To hold a man who has been judged to be of minimal risk to the country would make a mockery of the legal proceedings just completed."

In the New York Times, William Glaberson also reflected on the Pentagon's response, noting that spokesman Cmdr. Jeffrey D. Gordon "pointedly declined to make any promises" after the sentence was announced. Glaberson explained that Cmdr. Gordon "said he 'would not want to speculate' about whether Mr. Hamdan would be released at the end of his sentence," but added, "I can reassure you that the Defense Department is hard at work on this issue."

On Sunday, a New York Times editorial only touched on the administration's proposals to continue to hold Hamdan, but made it clear that the newspaper would continue to monitor the government's proposals. "[I]n the twisted world of Mr. Bush's prison camps," the editorial stated, "it is unclear if Mr. Hamdan will be released after serving his sentence."

The rest of the editorial was a considered hatchet job on the whole of the Commission process. Noting that Hamdan was "hardly a high value target," the editors cited the comedian Stephen Colbert, noting that he "captured the absurdity of the proceedings perfectly on Thursday night when he called the trial 'the most historic session of traffic court ever.' It will not be long, Mr. Colbert added, 'before we track down Ayman al-Zawahiri's dermatologist.'"

The editorial concluded, "Mr. Bush's hapless, and often unconstitutional, approach to combating terrorism will leave his successor a great deal of work to do. The rule of law, including fair and open trials, must be restored. Guantánamo needs to be shut down, as Mr. McCain has said many times. Detainees must be put on trial quickly in real courts, and those who are not guilty must be freed. Mr. Bush's supporters have been crowing over the Hamdan verdict as if it were some kind of a triumph. In truth, it is a hollow victory in the war on terror, a blow to America's standards of justice and image in the world."

Elsewhere, explicit criticism of the proposals to continue to hold Hamdan peppered editorials across the United States. The Kansas City Star, for example, stated, unreservedly, "It has been suggested that this trial at least demonstrates that the commission system is fair. Unfortunately, though, the White House has left open the possibility that it will keep Hamdan in prison indefinitely even after he has completed his prison sentence. This sounds like some scenario out of a third-world dictatorship. It threatens to make a mockery out of the trial and those expected to follow. Once the government has submitted a case to a judicial process created by the Bush administration itself, the president should at least agree to abide by the results."

The Salt Lake Tribune was similarly critical. After noting that the jury had "imposed a surprisingly lenient sentence" on Hamdan, because he was nothing more than a "bit player" in al-Qaeda, the editorial stated, "It follows that the government should release him after he completes his sentence by year's end. To do otherwise, to continue to hold him as an enemy combatant for the duration of the so-called 'war on terror,' as the Bush administration has insisted it can, would be absurd. If the result of his trial and its sentence do not affect the term of his confinement, what was the point?"

Noting that "the rules in this game are not the same as in the civilian courts," that they are "stacked in the government's favor, and constitutional rights do not apply," the Tribune concluded, "Nevertheless, the jury of officers weighed that evidence carefully and rejected the pleas of the government that Hamdan be convicted as a terrorist conspirator and sentenced to life in prison. These are military officers who must understand better than most that a terrorist released from custody could return to fighting the United States and killing Americans. By their verdicts and sentence they signalled that they believed the defense argument that Hamdan is a small fish, not a terrorist shark, who just wants to go back to his family in Yemen. The Bush administration should respect those officers' judgment."

Tempting though it is to move on to other topics, I can only hope that the media continues to question whether the administration actually believes in its own trial system at Guantánamo, or if it is, instead, committed solely to unfettered executive power. And US citizens should be just as vigilant, insisting that the next President of the United States relinquishes the dictatorial powers created by the current administration. It really is that important.