Hamdan, Human Rights, and John Edwards

Last week Salim Ahmed Hamdan was sentenced to 66 months in prison pursuant to his conviction for providing “material support for terrorism” before a military tribunal. His material support was comprised of driving Osama bin Laden around and serving as one of his body guards. Hamdan’s relatively short sentence, which will include time already served in detention at Guantanamo, will advance the issue of whether detainees who have served their punishment after conviction in the Administration’s military tribunals will be released, or will continue to be held as enemy combatants. Hamdan will likely complete his five and a half year sentence before a new administration is inaugurated. If President Bush does not release him immediately on completion of his sentence, that will leave the next administration with one more complicated problem to resolve. The NY Times reports that a Pentagon spokesperson “would not speculate’ on whether Hamdan would be released after completing his sentence.

Would it not violate Due Process to hold Hamdan indefinitely after completing his sentence for a criminal conviction? Under the reasoning provided by the Supreme Court in Hamdi, perhaps not.


Finding authority for detentions for the duration of the conflict against Taliban forces in Afghanistan under the Authorization to Use Military Force, the Hamdi Court concluded: “The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who ‘engaged in an armed conflict against the United States.’ If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of ‘necessary and appropriate force,’ and therefore are authorized by the AUMF.” Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).

I would assume that a conviction for material support of terrorism, in addition to the Combatant Status Review Tribunal determinations, would support the claim that Hamdan has been “legitimately determined to be [a] Taliban combatant[].” Thus, there will be an argument that Hamdan’s status has not changed as someone properly designated an enemy combatant, even if he has completed a sentence for a criminal conviction. With hostilities continuing, if not worsening, in Afghanistan, the scene is set for the ugly possibility that having failed to obtain a sought-after life sentence, the government might resume its practice of merely holding individuals for the duration of conflict under the AUMF. With both Presidential candidates vowing increased military activity in Afghanistan, in the near term, such detention would be indefinite.

There has been no shortage of criticism for this flawed system from human rights groups as well as governments abroad. This weekend President Bush gave a speech in Bangkok in which he spoke of his “deep concerns over religious freedom and human rights” in China. Putting pressure on other nations over their human rights abuses has been an important part of our foreign policy for over half a century, which has required the U.S. to present itself as that beacon of freedom and liberty. As many others have said many times, U.S. practices that have included torture and cruel, inhumane and degrading treatment, indefinite detentions, the attempt to evade constitutional checks by courts or Congress, and military tribunals have all undermined our international standing to speak about the human rights abuses of others. Becuase of these policies and practices, the President has undermined some of the moral authority that would ground his remarks about China’s human rights record.

For the reader who has made it to the end of this post, here is where John Edwards’ recent revelation of marital infidelity is relevant. Maureen Dowd comments on Edwards in the NY Times: “He has an affair with Hunter, while he’s honing his speech on the imperative to ‘live in a moral, honest, just America.’” Edwards receives particular condemnation not simply for his infidelity (and not simply for having placed the whole Democratic Party at risk), but for what the apparent hypocrisy might reveal about his character. If we translate at the national level “constitutional culture” for personal character, the worry is that our own apparent hypocrisy reveals something very troubling about our own constitutional culture. Tabloid T.V. apologies won’t do at the national level, but a new administration’s commitment to releasing Hamdan after serving his sentence, and shutting down further military tribunals in favor of civilian or military courts just might.

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2 Responses

  1. l.k. Richard says:

    It seems to me, although I can’t speak exactly for the language or intentions of SCOTUS or the AUMF, that the decision to leave open the option to detain a combatant ‘engaged in an armed conflict against the United States’ is an incredibly infallible position. I say this from the standpoint that by this definition it can be reasonably implied that the combatant intends to return to the services of the enemy side of the war after the jail term has been concluded.

    On some levels, it is readily apparent that this is the wrong take, especially from the standpoint of the rest of the world, who only hear the soundbytes translating the message that the US violates international principle again. It would also be valid to argue that the Hamden’s sentence ought to infer that his crimes have met with the full force of the relevant law to the extent that the same force of law should no longer possess the ability to pursue punishment beyond what it has allowed. And finally, how will this all affect legal trends, if laws are bent in an arguably unpopular because fundamentally wrong why?

    Despite these good ideas though it would still seem necessary to consider the opposition claims against holding a prisoner if that prisoner is going to reengage in combat pursuant to his release. Not to say that Hamden will, just that, if somehow it can be determined that his first actions after stepping across the jail threshold were: fly to Iraq, meet with contacts (which were not told of along with the ‘whole truth’) and then start killing soldiers again, or something, then the idea would be to stop that just as we would stop any other combatant.

    Of course, the burden of proof necessary to show that Hamden will reengage in combat should be ridiculous. In fact, it ought to be almost unprovable, men in this or any vein of suspicion being probably not impeccable fortune-tellers. But if he goes on record and convincingly makes a statement to that effect (thinking Dave Chappelle’s skit regarding the R-Kelly scandal: the proof he jokingly required for conviction was the eye-witness of police officers and R-Kelly’s grandmother to ID him and the girl holding 3 forms of government ID, among other things), then detention would be necessary.

    Unless I am totally wrong, and even the strongest (vaguest?) language is inadequate protection for some basic freedoms…

  2. Saqib says:

    I’d like to learn your take on the Dr. Afia Siddqui case.