"Gitmo justice"

WASHINGTON - In the next few days a Military Commission at Guantanamo will issue a verdict in the first American war crimes trial since World War II, the case of Osama bin Laden’s former driver, Salim Hamdan. To one who has observed the proceedings, it appears that Hamdan has been given a fair trial. But if he is convicted, much of the Arab world may disparage the verdict as a product of heavy-handed “Gitmo Justice.”

There is no persuasive reason why Military Commission trials should be held at Guantanamo. The U.S. detention and interrogation operation there has become a symbol of brutal excesses in America’s war on terror, a taint that is likely to rub off on the Military Commissions that are also currently located there. To avoid the taint, the Military Commission facility should be closed down, and future war crimes trials should be held in the United States.

There was some logic to locating the Military Commissions in Guantanamo when the Bush Administration believed the remote U.S. naval base would be beyond the supervision of the Supreme Court. But once the Justices declared that U.S. operations in Guantanamo were fully subject to judicial review by the civilian courts, it became illogical to hold court in such a misbegotten place.

Nobody who was not fleeing the stern gaze of the Supreme Court would have ever put a court in Guantanamo. Everything is inconvenient. Witnesses must be flown in from the mainland. Government flights are occasional, commercial air service almost nonexistent. So attorneys, jurors and court personnel are mostly isolated from their families on the mainland.

Gitmo is hot–hospitable to scorpions, mosquitoes and iguanas, but not to journalists packed into tents without hot food or running water. The Pentagon had hoped there would be wide coverage of this first test case, in hopes that the government could make its point to the public that the proceedings were just. But so far the only American television networks to broadcast live reports have been “In Session” (formerly Court TV), and CNN.

Despite the boot camp setting, journalists would have flocked to Guantanamo if the first defendant had been a bloodthirsty terrorist bigwig. Instead, the government inexplicably picked Hamdan, who never fired a shot in battle and never got around to actually joining Al Qaeda. Hamdan’s misfortune was that when US forces nabbed him in Taliban country there were two surface-to-air missiles in his car. The Americans didn’t believe his story that it was a borrowed vehicle and the missiles must have belonged to the car’s owner. So he probably will be convicted of giving material support to terrorists.

But the second charge against him is conspiracy, and he could actually be acquitted of that. The evidence shows that no al Qaeda heavyweight deigned to conspire with him, they just gave him orders about when and where to drive bin Laden’s car. The government may argue a novel legal theory, that Hamdan’s failure to leave al Qaeda after so many murderous attacks was tantamount to conspiring with the terrorists. But the jury—even this one made up of military officers–may not be willing to reach that far.

Ironically, the government could score a public relations coup if the jury should find Hamdan not guilty of one of the two counts. It would demonstrate that the Military Commission process is not stacked against the defendants. But if Hamdan is found guilty of both counts, the world’s reaction could be soured by the fact that it all happened in Guantanamo.

Why would a judicial proceeding be located in such a place? There is no rational answer, and future war crimes trials should be held in a place where people can at least drink the water.

–Fred Graham, In Session senior editor