Hamdan Guilty After Judge Issues Improper Instructions

The first Gitmo military panel has completed its work and unsurprisingly declared Osama bin Laden's driver-cum-bodyguard to be guilty of terrorism but the odious smell of a Soviet-style show-trial continues to stink like a perch left on the porch overnight, especially after the presiding judge admitted today that he might not quite have gotten his legal instructions exactly right.

As the military panel at the trial of a former driver for Osama bin Laden deliberated for a full day Tuesday without reaching a verdict, the presiding military judge said he might have given the members incorrect legal instructions about how the international law of war is to be applied here.

“I may well have instructed the members erroneously,” said the judge, Capt. Keith J. Allred of the Navy, during one of several sessions called outside the hearing of the six-member panel of senior military officers who are considering war-crimes charges against the driver, Salim Hamdan.

No biggie. I'm sure he didn't blow anything important, right? It was probably some little technical detail.

One reason the government has given for prosecuting Guantánamo detainees as war criminals is that terrorist attacks by Al Qaeda violate the international rules of war. Those rules require, for example, that armed forces wear recognizable uniforms and carry firearms openly.

But prosecutors said Tuesday that the judge had defined “murder in violation of the law of war” incorrectly. He did not tell the panel that it would be a violation of the law of war for an unlawful combatant, like a member of Al Qaeda, to kill a member of an opposing military service during combat.

The defense said that such a killing might be an ordinary crime that could be prosecuted in American courts and that it was not a war crime for an enemy to kill a soldier in combat.

But the prosecutors argued that an unlawful combatant, like a Qaeda fighter without a military uniform, violates the law of war by killing in combat. While Judge Allred’s ruling is not binding on other military commission judges, it could influence them, and both sides cited legal precedents about the issue that could be critical to this case and others here. Judge Allred said he was not certain of the answer.

A prosecutor, Clayton Trivett, said the judge’s interpretation could limit the prosecution’s options in other cases here. He noted that prosecutors had said they might charge as many as 80 detainees with war crimes in the military commissions at Guantánamo.

“The concern for the prosecution,” Mr. Trivet said, “is that the law be right.”

(emphasis added)

Oh, you mean Judge Allred left out the Bush rationale for trying the defendants in a military court instead of a civilian one? Oh, dear. That is difficult.

Not that they proved Hamdan killed anybody in combat, or even that he was charged with such a crime. He wasn't. He was charged with conspiracy and the military equivalent of aiding-and-abetting. But even at that low level, they still felt he deserved to be condemned. As a terrorist. The bizarre leading the unbelievable just to save Bush some embarrassment.

So if the definition is the basis of the conviction, it could affect many of the 80+ show-trials left to go, and it almost certainly led to the panel's split decision.

A panel of six military officers convicted a former driver for Osama bin Laden of a war crime Wednesday, completing the first military commission trial here and the first conducted by the United States since the end of World War II.

But the commission acquitted the former driver, Salim Ahmed Hamdan, of a conspiracy charge, arguably the more serious of two charges he faced. His conviction came on a separate but lesser charge of providing material support for terrorism.

"Material support". That's driving a car to you and me. He was a fucking chauffer. He was just the wrong guy's fucking chauffer.

He has yet to be sentenced on the conviction. If there's going to be any acknowledgement that these legally bogus kangaroo courts might be shameful, it will come then.