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.