Hamdan Without Tears
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
News of the conviction of Osama bin Laden’s driver, Salim Hamdan, by a panel of military officers sitting at Guantanamo had barely hit the wires when the so-called civil rights lawyers were being quoted as running down the military tribunals. “This is not a day the administration should glory in. It’s a day that America should be ashamed of,” the Washington Post quoted Hamdan’s deputy chief defense counsel, Michael Berrigan, as having said after testimony ended in the two-week trial. “Hopefully, in the not-too-distant future, this process will go away and we’ll have real trials.” It quoted Benjamin Wizner, a staff attorney for the American Civil Liberties Union who attended the trial, as ridiculing the administration for inaugurating the military system on “a marginal figure.”
These kinds of reactions tell more about the left today than they do about America’s treatment of Hamdan, who, we are reminded in Jonathan Mahler’s book about his case which hits the stores today, had weapons in the trunk of his vehicle when he was arrested and was a driver for Osama bin Laden even after he was aware of the nature of Mr. bin Laden’s war against America. Yet an enormous effort was levied — by our military’s judge advocate generals corps, by our civilian lawyers, by our courts and Congress, and by our press — to ensure that Hamdan, the first Islamist terrorist to be tried by a military commission, was given a fair hearing. We’d be surprised if a fairer one were ever had in the entire history of warfare.
The military commission, moreover, proved itself eminently capable of making distinctions. Its panel of military officers acquitted Hamdan of conspiring with Mr. bin Laden in terrorist attacks. But it convicted Hamdan of, in the Washington Post’s characterization, supporting Al Qaeda by driving and guarding Mr. bin Laden and ferrying weapons for the terror organization. Even having played a tiny part in a vast war against America, however, is a huge crime, something that has been recognized since the dawn of our republic.
The fact that providing minor assistance to our enemies does not excuse the crime was underscored the first time the Supreme Court actually sustained a conviction of treason, we are reminded by the exegesis in the Corwin edition of the Constitution. The case involved a German immigrant named Hans Haupt, who was brought up on a charge of treason for giving shelter and lending a car to his son Herbert, a German spy. Though Haupt’s was a minor part, the court, in an opinion by Justice Jackson, gave him no quarter. It may be that Hamdan came to realize the ghastly implications of his minor deeds; it was reported that as the verdict was brought in, he wept.
Our own eyes are dry. What happens now to Hamdan — where and in what prison he is held — will be of little importance. What is important is where our leadership stands. Senators McCain and Obama are already reported to be differing in their reactions, with the Republican backing up our military in its handling of Hamdan and the Democrat praising the members of the military commission while carping about how the fact that the Hamdan trial “took several years of legal challenges … underscores the dangerous flaws in the Administration’s legal framework.”
Mr. Obama, a constitutional scholar, was among the 35 Democrats who voted against the Military Commissions Act that set up the framework that the Supreme Court had asked the Congress to set up to try the detainees in the current conflict. And the Supreme Court did turn around declare the Congress’s first effort unsatisfactory. But we, for one, find it odd that Mr. Obama chides the current administration for having failed to apprehend Mr. bin Laden, while siding against it in its claim to authority in meting out justice to those we are currently holding. This is going to put him in a pickle if he manages to become president himself.