The Bush administration needed a big win in the Salim Hamdan case at Guantánamo. It didn't get one. By convicting Osama bin Laden's former driver—the first "terrorist" to be tried under the first U.S. war-crimes tribunal since World War II—only of "material" support for terrorism, and absolving him of conspiracy to commit terrorism, the military judges provoked questions about what Hamdan was doing there in the first place. Is driving a car a war crime? The appeals court may decide not—in which case even this meager verdict could be thrown out.
"I would be very surprised if any of this conviction stands at the end of the day," says Scott Horton, a law professor specializing in human rights at Columbia University. "He was convicted of things that are not war crimes by a tribunal that has the power only to prosecute war crimes."
Obviously this was no show trial. This six-member jury did not buy the prosecution's case that Hamdan knew about and was involved in terror plots, only that he assisted Al Qaeda by driving and guarding bin Laden. "This is not a jury that did the government's bidding," says Scott Silliman of Duke Law School, a former JAG officer. "The fact that you couldn't get two thirds on conspiracy is significant … I think it could go all the way back to the Supreme Court." As Matt Waxman, the former Defense Department assistant secretary of detainee affairs, put it to me: "In terms of global perceptions, it's really been the U.S. system that's on trial more than individual terrorism suspects … The government has certainly lost the perceptions battle on this case so far."
Indeed, the Hamdan verdict points up, more than anything else, one of the central mistakes of the Bush administration after 9/11: sheer overreaching. Was this really the best the administration could do—a driver—in the first test run of its much-batted-about tribunal system, nearly seven years after the terror attacks themselves? By arrogantly deciding that the president had the right to define and pursue the "war on terror" any way he liked, and that he could define anyone he liked as an "unlawful combatant"—then expanding its prisoner population way beyond the true Al Qaeda culprits to include everyone rounded up in Afghanistan and then Iraq—the administration ensured itself a legal and moral quagmire. It ensured that, ironically, the champions of a strong executive branch in the Bush White House would end with even less executive power to wage this "war" than they inherited from Bill Clinton. And it ensured that hundreds of detainees of dubious criminality and nonexistent intelligence value will continue to molder in prison with no disposition of their cases. The government plans to use the tribunals for no more than one third of Gitmo's detainee population, further draining America of the moral authority that was once so much a part of our self-identity.
Yes, the war against Al Qaeda called for a stretching and changing of the rules of war. There was a need for some ruthlessness. There was a need to "work the dark side" somewhat, as Dick Cheney memorably put it, when you were dealing with the Khalid Sheikh Mohammeds and Muhammad Attas of the world. But for that very reason it was necessary to define the enemy precisely, to severely limit the number of these occasionally necessary breaches of the traditional rules of war that gave us our moral stature and helped to keep our men and women in arms safer in the hands of enemies. The administration did the opposite. What began as a hunt for a relatively contained group of self-declared murderers like bin Laden became a feckless dragnet for tens of thousands (if one includes Iraq) that no other country could openly support. And now we are paying for it. We Americans are now fighting the "War on Terror" all but alone in the world.
"By defining the war on terror so expansively the administration has undermined the legitimacy of that very concept," says Waxman, who fought several brave battles within the White House, principally against Cheney, his chief legal counsel David Addington and their Justice Department mole, John Yoo, to clarify and rationalize detention and interrogation rules. "Had the government taken a much narrower approach, and restricted the definition of who could be detained, it would be in a stronger position."
It's like the old proverb: when you shoot at a king, you must kill him. Otherwise you're going to end up worse off, and he's going to end up stronger than before. Now, after seeing the military judge, Navy Capt. Keith Allred, throw out evidence obtained against Hamdan under "highly coercive" interrogation rules, there are even questions about what self-declared terrorists like Khalid Sheikh Mohammed will get the judge to disallow under this new precedent. Hamdan likely wasn't waterboarded by the CIA, as Mohammed was. There is a reason why, at Nuremberg, no one tried to try Adolf Hitler's driver.