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08 Aug 2008 12:32 pm

The Hamdan Fiasco

You will get the gist from two very different posts in the blogosphere - Scott Horton's careful and enraged account of the case is here (he posted it before the sentencing), and Andy McCarthy's even angrier splutter is here. What does it tell you about the Bush administration's detention and interrogation policies that they have managed to appall those who care about this country's reputation for justice and madden those who want to see all al Qaeda operatives, even very low-level functionaries like Hamdan, kept behind bars? I can't help thinking of Dick Cheney on television, asserting mastery in his gravelly unflappable voice, oozing competence and assurance, even as his pig-headed arrogance and ideological extremism have revealed his vice-presidency as a farrago of cockamamie, incompetent, know-nothing machoism. Just because you have the anal-retentive David Addington running your office doesn't mean you have anything under control.

Five and a half years (with time served), moreover, is not a crazy verdict when you examine the case. Even that judgment may well be overturned, as Scott explains. Hamdan is only still in jail at all because the government introduced new charges - inapplicable to a military commission - after the original, appropriate ones collapsed:

The military commissions exist to try war crimes. Conspiracy is a war crime. Indeed, Robert Jackson himself labored to make that point at Nuremberg and he succeeded. The conspiracy charges were therefore plainly within the competence of the commissions. And he was acquitted on these charges. But in the second round, “material support” charges were added—a crime invented after the fact, in violation of basic legal and constitutional norms. Notwithstanding vacuous Congressional pronouncements, “material support” is not a war crime. For obvious reasons—if it were a war crime, then the laws of war would be criminalizing entire populations that are enlisted in the support of the criminal regimes which not infrequently in human history have come to power.

If the administration had stuck to the Geneva Conventions, given all captives POW status (not full, but basic), constructed the kind of trials that the US did at Nuremberg, we would not only have been able to use the prosecution of many of these terrorists to broadcast the difference between them and us, we could have kept the guilty from ever being released - at least until Osama bin Laden surrendered. Instead, we have detained and tortured countless innocents, made a mockery of Western standards of justice, pulled the rug from under the Geneva Conventions - one of the greatest achievements of the civilized world - and allowed terrorists and their enablers to run free after a few months.

Could they have ballsed this up any more thoroughly?

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