Balkinization: "The Worst of the Worst"

Comments:

1) Hamdan was almost certainly convicted primarily on the basis that he was transporting SAMs for al Qaeda in his car. Why does Ms. Brooks ignore that rather salient fact in favor of a culinary snark?

2) There is very little precedent for this kind of trial because historically pirates, brigands, partisans, guerillas and other unlawful combatants had not right to trial and were not generally granted trials unless the capturing country wanted to make a public example out of them. For example, if a Confederate sympathizer ala Hamdan was caught transporting weapons for Bloody Bill Quantrill and his Confederate guerillas terrorizing Kansas and Missouri, the Union Army would have executed him in the field without a trial pursuant to Lincoln's General Order 100. For the first time in history, Congress has granted unlawful combatants (and that term includes supporters) judicial due process. Why are due process advocates not celebrating this "advance" which obviously arrived at a just resolution?

# posted by

Bart DePalma : 8:59 AM

That's an interesting question as to prosecutorial discretion. I hadn't realized until earlier this week that the prosecutor decided to release Hamdan's boss - who, being in charge of bin Laden's bodyguards, surely must have guilty of providing material support. Hamdan's testimony would have been useful against the boss.
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But, as a question of discretion, the answer isn't to be found in meeting the elements of the offense. Perhaps the boss poses less of a threat as the war unfolds, so release was appropriate. But I'd think the head of bodyguards is at least as likely to return to the fray, as is the driver/mechanic.

# posted by

cboldt : 9:24 AM

Bart: That's mistaken. He was acquitted on the charges related to delivering weapons. His convictions are based on his provision of transportation and being a "body guard." See my post from yesterday.

# posted by

Marty Lederman : 9:30 AM

Marty:

From yesterday's post:

The charges for which he was convicted were Specification 2 on page 7 of the charge sheet, and Specifications 5 through 8 on page 9.

Specification 2, Paragraph 19 expressly refers to Hamdan's transport of the SAMs. However, it is true that the other counts referred only to Hamdan's services providing transportation and security for bin Laden.

I stand partially corrected.

# posted by

Bart DePalma : 10:02 AM

-- Specification 2, Paragraph 19 expressly refers to Hamdan's transport of the SAMs. --

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Yeah, but unless we see the jury sheet, we don't know if that point of specification 2 (point "d" of "a-d") was found by the jury. They only had to find one (or more) of the four.

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-- Hamdan was almost certainly convicted primarily on the basis that he was transporting SAMs for al Qaeda in his car --

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Emphasis on the "almost."

# posted by

cboldt : 11:03 AM

Ah, for the salad days of 1863 and ancient Rome.

Anyway, President Bush has already made it clear that bin Laden is not a priority. Which is a good thing. He is only one. Whereas those formerly of his house staff are many.

# posted by

Michael Drake : 11:07 AM

Bart,

"There is very little precedent for this kind of trial because historically pirates, brigands, partisans, guerillas and other unlawful combatants had not right to trial and were not generally granted trials unless the capturing country wanted to make a public example out of them."

Do you have any documentation to support those claims?

Historically, every maritime power practiced privateering, committed war crimes, crimes against peace, and crimes against humanity, and I dare say that those efforts far exceeded those of pirates and brigands. We do know that people were often lynched here in the US, but I don't know of anyone except pathological neo-fascist liars such as yourself and John Yoo who would try to argue that a lynching is anything but a crime.

In point of fact, the Bush administration has murdered far more people and inflicted far more damage on the United States and other nations than Al Qaeda has.

In point of fact, Mr. Hamdan's "trial" is a war crime in and of itself.

# posted by

Charles Gittings : 12:40 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 1:30 PM

if a Confederate sympathizer ala Hamdan was caught transporting weapons for Bloody Bill Quantrill and his Confederate guerillas terrorizing Kansas and Missouri, the Union Army would have executed him in the field without a trial pursuant to Lincoln's General Order 100.

Not true.

General Order 100:

"Art. 12.

"Whenever feasible, Martial Law is carried out in cases of individual offenders by Military Courts; but sentences of death shall be executed only with the approval of the chief executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief commander."

There is this article:

"Art. 44.

"All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.

"A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior."

This refers (obviously, because of the phrase "by such superior") to the soldiers in the U.S. forces subject to this general order, not to "pirates and brigands".

This is the only use of the phrase "on the spot".

Cheers,

# posted by

Arne Langsetmo : 1:44 PM

It's amazing . . . let's say Iran attacked Israel, and then captured a guy carrying rockets, in Israel, that were to be used against the Iranians, in Israel, and put him on trail.

Would the folks supporting the Hamdan trial also support a similar trial conducted by the Iranians?

Charging and trying this guy was and is a joke.

And the Omar Khadr fiasco?? What the hell it that?

Imagine, say China attacked American territory, and then a Canadian boy under the guidance of his parents traveled to U.S. territory, then had his compound bombed by Chinese special forces. One Chinese military person dies, maybe because the wounded Canadian boy did something --- and it would be acceptable to try this kid for war crimes against the Chinese?!

Before getting into the technicalities of trial details and charges and the like, I think it's worth stepping back and looking at the circumstances that these guys were captured in.

Seriously, just imagine if say Israel was attacked by Iran, and a sympathetic American kid went there with the purpose of killing as many Iranians as he could . . . would you really think this kid should be tried for war crimes?? Why? because the poor Iranians would have some kind of right to invade and not be attacked?

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# posted by

Unknown : 11:57 AM