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WAR COURT

Bush era conviction of Bin Laden driver is upheld

 

The military judges also said an 1818 military commission ordered by Gen. Andrew Jackson during his invasion of Spanish Florida that waged war on the Seminoles was a valid precedent.

crosenberg@miamiherald.com

A military appeals panel has upheld the war court conviction of Osama Bin Laden’s driver in a sweeping decision that vindicates the military commissions President George W. Bush crafted for Guantánamo.

The U.S. Court of Military Commission Review’s 86-page ruling, released Friday evening, said not only did Salim Hamdan of Yemen get “a full and fair trial” at Guantánamo, but also said that the military can lawfully use a separate court to prosecute foreigners “whose purpose is to terrorize American citizens.”

The timing is significant. The ruling validated the war crime of providing material support to terrorism at a time when the Pentagon is preparing new cases. Five of the 171 captives currently at Guantánamo face death penalty prosecutions for the Sept. 11, 2001, attacks.

And the trial of Bin Laden’s $200-a-month driver has long been a test case.

Hamdan’s American lawyers took the Bush administration to the U.S. Supreme Court and won a 2006 ruling that its first plan for Guantánamo trials was unconstitutional. The Bush White House worked with Congress on a new court — over the objections of then-Sen. Barack Obama — and a jury convicted Hamdan of being an al Qaida foot soldier in the summer of 2008.

He got a short sentence and was back in Yemen, appealing his conviction, by the time Obama took office and reformed the commissions to expand the rights of the accused.

Hamdan’s appeal addressed such key issues as whether Congress and the White House can constitutionally create a court after the alleged crimes occurred, and after the alleged terrorists’ capture and interrogation, and whether providing material support for terror was a war crime, since it’s not a violation of international law.

In upholding his conviction, the panel of seven U.S. military colonel judges agreed with Pentagon prosecutors that Guantánamo captives have the limited Constitutional protection of habeas corpus.

Moreover, they noted that Congress enacted the Military Commissions Act “to create a forum and a process by which to bring justice to foreign unlawful combatants whose purpose is to terrorize American citizens. There can be no more legitimate purpose of a government than to protect its citizens from its enemies.”

The court also accepted a 19th Century precedent that angered some modern-day Seminole Indians.

In that case, U.S. forces under Gen. Andrew Jackson invaded Spanish Florida in 1818 to stop black slaves from fleeing through a porous border. Troops captured two British traders, whom the general ordered face a military commission on charges they aided the enemy by helping the Seminoles and escaped black slaves.

The tribunal convicted the men and sentenced them to a whipping.

Jackson, a slave owner, declared the punishment too soft and had them executed.

In citing the case, Guantánamo’s war court compared the Seminoles then to al Qaida today —- an analogy that drew protest from Native Americans, some of whom asked that the precedent be withdrawn. The prosecutors refused.

The panel ruled the precedent was an apt one.

“The court takes no comfort in the historical context in which these events occurred or the ultimate disposition of these cases,” the ruling said. “We cite to these events for their historical occurrence as an embryonic effort of the United States to deal with the complexity of fighters in irregular warfare.”

Hamdan, who left Sana’a, Yemen in the 1990s to join a jihad, argued that he was a poorly educated man who found steady work with Bin Laden, not al Qaida, by driving the Saudi millionaire around Afghanistan as part of a security detail.

The appeals court said the 2008 Guantánamo jury correctly found otherwise.

“The record establishes and the military commission found that appellant joined and became a member of al Qaida, a well-established terrorist organization, with the knowledge that al Qaida has engaged in and engages in terrorism,” the panel ruled.

Curiously, page 8 of the decision, under the heading of Procedural History, gives the wrong date of Hamdan’s repatriation — off by a year — as November 2009. In fact, Hamdan’s commission rejected a prosecution request for a lengthy prison term and sentenced him largely to time served. U.S. forces sent him home to Yemen in November 2008.

dealsaver
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