Today, after years of political warfare and convoluted legal reasoning, the trial of Salim Ahmed Hamdan finally got underway.
At issue is whether Hamdan, a Yemeni national accused of serving as Osama bin Laden's driver and supporting terrorism, played a substantial role in carrying out terrorist activity, or was merely an insignificant cog in bin Laden's organization.
But the muted question in the background is whether the Bush administration's war on terror provides a legal premise for stripping away constitutional cornerstones: over the years, a growing chorus of legal observers have blasted Gitmo's military commissions as an insult to the American and international justice systems.
The government has for now managed to sidestep a recent court decision affirming prisoners' access to U.S. courts; a federal judge is letting the trial run its course before further legal action is taken. Now, Hamdan's trial is a petri dish for the Bush administration's court system--possibly a window into future trials for other "unlawful enemy combatants" that the government has queued up.
Blogging from Gitmo, Frank Kendall, an advocate with Human Rights First, breaks down the "circular" logic of the military commissions structure:
"It begins with the premise that Congress can create a class of people that are outside the protection of the equal protection clause.... Once this is done, all that is needed is a reasonable process to determine that people are in that class of 'bad' people, and then the equal protection clause no longer applies... Judge [Keith] Allred has concluded that the military commissions are all the justice that unlawful alien enemy combatants deserve."
Lost in the media scrutiny over the trial is a very practical question for anyone trying to deal with modern forms of terrorism: Why do the commissions exist?
HRF fellow Aaron Zisser blogged from Gitmo last weekend about how the supposed validity of the administration's self-styled court rests largely on the executive branch's say-so:
"A reliable and legitimate, alternative system exists in the ordinary federal courts, which have amassed years of experience trying terrorism cases and use time-tested rules and procedures to resolve complex legal issues...."Even Judge Allred recognized that terrorism cases are often prosecuted in federal courts, so why not in this case? The prosecution’s response – that it is the Administration’s prerogative to choose the appropriate venue following a deliberative decision-making process – was specious at best."
In a plea to Judge Allred back in April, Hamdan put this concept in plainer terms with a simple request:
"America tells the whole world that it has freedom and justice. I do not see that. . . There are almost 100 detainees here. We do not see any rights. You do not give us the least bit of humanity. . . Give me a just court. . . Try me with a just law."