Roger Fitch

Roger Fitch Esq • August 8, 2008

Our Man in Washington

Civil War banditti and jayhawkers are the basis of today’s “material supporters of terrorism”. Be careful – Bush law says it’s a “war crime” to shoot at Americans

The Bush administration has secured a conviction of Salim Hamdan, one of Osama bin Laden’s drivers.

Hamdan was the designated guinea pig in a program to remodel the US constitution and international law.

The ultimate goal? Making a military crime out of unfriendly acts around the world against American interests, as far back as 1996.

Why military? Well, because the president claims the right – if there is a war underfoot somewhere – to keep secrets, deny legal protections and run roughshod over courts, congress and defendants.

He gets to make up the rules, and with rigged trials, including tortured confessions, he always wins.

True, in Hamdan’s case “conspiracy” failed, but five of the specifications for material support succeeded.

The UK Independent has a report on the foreign reaction.

Historian-blogger Andy Worthington has more.

The high street newspapers will no doubt claim that, with Hamdan convicted, “the system” is working, but what system is that?

Basically, it’s the same one used on David Hicks in 2007. That effort succeeded because Hicks pleaded guilty and there was no appeal.

Hamdan (seen here in a 1999 snap), like Hicks, received a light sentence, perhaps to deter an appeal that would overturn the whole process .

He’ll be eligible for release from custody in five months from now.

Consider the following:

• The offences in the Military Commissions Act 2006 were only created years after the acts that were made crimes, in violation of the US constitution as well as international law;

• The offences are not violations of the law of war as the MCA claims, and the Supreme Court required in the appeal against Hamdan’s previous “presidential” commission;

• The jury findings on which Hamdan was convicted do not specify acts occurring after September 11, 2001, as the Supreme Court required in Hamdan’s case;

• The trial itself did not conform to the requirements of the US constitution or international law, primarily because coerced and secret testimony was admitted, hearsay and self-incrimination;

• The appeal, if any, will not satisfy requirements of the US constitution or international law.

Few of these issues were included in media reports of the Hamdan case.

The Washington Post, at least, noted that a defence witness had “testified that an ‘armed conflict’ between the United States and bin Laden’s organization began with the Sept. 11, 2001, terrorist attacks”.

“By that point, Hamdan had worked for bin Laden for at least five years. That is a potentially key legal issue because the terrorism conspiracy charges against Hamdan declare on their first line that he violated the ‘laws of war’. If the United States and al-Qaida weren’t at war, the defense argues, Hamdan’s service as one of bin Laden’s seven drivers was not a war crime.”

But another issue derailed the conspiracy charges. Even though the Department of Justice had sent its own prosecutors to Guantánamo as political fixers, the conspiracy charge against Hamdan hit a brick wall when Judge Keith Allred insisted on using conventional law-of-war definitions in his jury instructions.

To the apparent surprise of the DoJ lawyers, Judge Allred ruled that Hamdan’s act in carrying missiles around in a car had to be directed at killing civilians.

Not only did the prosecution have no evidence of that, they had actively tried to show it was US military personnel who were targeted.

With the omission from jury instructions of the fundamental “war against terror” construct the Bush Gang has argued for seven years – the theory that shooting at Americans is somehow a “war” crime – the conspiracy prosecution fell in a heap.

As for “material support”, how did that come to be a “war crime”?

The MCA recites that only existing international war crimes have been adopted in the Act, yet no one had ever heard of “material support” as a war crime before the MCA.

Mr Bush omitted it from his laundry list of faux crimes included in the “presidential” military commissions that were declared unconstitutional by the Supreme Court in 2006.

Nevertheless, Bush’s lawyers argued, and Judge Allred accepted, that material support was a recognised war crime.

Why? Well, Judge Allred seems to have found persuasive the fact that …

“The language of the General Orders establishing the jurisdiction for military commission during the Civil War suggests the existence of an offence similar to ‘providing material support for terrorism’ existed during that conflict: ‘There are numerous rebels … that … furnish the enemy with arms, provisions, clothing, horses and means of transportation; [such] insurgents are banding together in several areas of the interior counties for the purpose of assisting the enemy to rob, to maraud, and to lay waste of the country. All such persons are by the laws of war in every civilized country liable to capital punishment (emphasis added). Numerous trials were held under this authority”.

The source of this authoritative citation? The dissent of Justice Clarence Thomas in the Hamdan decision, quoting from “an 1894 Congressional document”.

The government also relied on an 1865 opinion of Abraham Lincoln’s Attorney General:

“To unite with banditti, jayhawkers, guerrillas or any other unauthorized marauders is a high offence against the laws of war; the offence is complete when the band is organized or joined.”

So there you have it: banditti and jayhawkers were prosecuted during the US Civil War. They were obviously the material supporters of their day.

* * *

In fact, if a war crime has occurred, it is the war crime of failing to provide Hamdan a fair trial.

That issue was canvassed in a 2005 Wall Street Journal series by Jess Bravin, who also wrote about the US punishment of Japanese for the very acts of coercion revealed in Hamdan’s case.

Australian legal opinion has backed this analysis of war-crimes-trial-as-war-crime (see my post of June 15, 2007).

* * *

Maybe Guantánamo and all it represents will shortly no longer be a burden for the United States.

Saudi Arabia has announced that it is having five prisons built to replace Guantánamo.

The builder? The Bin Laden construction company.