I followed closely and also defended most of the administration’s actions on military tribunals and detention of unlawful enemy combatants. The victory of the administration in convicting Osama bin Laden’s drive, Salim Hamden, has proven a Phyrrhic one. The military tribunals process has been drawn out and subject to repeated smack downs by the judiciary. This end result contradicts their initial purpose which was to be swift, harsh, and devoid of intelligence leaks that would occur in a civilian trial. It has simply taken too long for this process to get underway. Further, the administration’s public relations have been as hackneyed as usual, insofar as most of the GITMO detentions are preventative rather than punitive in nature, and the initial characerization of GITMO’s denziens as the “worst of the worst” has been shown to be a gross exagerration.
The biggest obstacle to the administration’s designs has been a predictable but hitherto overlooked one: the culture of the American military combined with their role in sentencing. Military men the world over have often found war crimes trials unseemly, overly political, and arbitrary in who is punished, released, or overlooked altogether. Ideologically charged civilians in the DOJ would likely be more harsh and consistent in their dispatch of al Qaeda’s foot-soldiers on the familiar RICO theory of “enterprise liability” coupled with the military offense of belonging to an irregular and illegal organization. Under the UCMJ, the court martial panel decides on the sentence for the accused, in contrast to judicial sentencing in civilian courts. It is strange that mandatory sentences and the application of sentencing by a civilian judge has not been imported into the tribunals regime, as in this particular the military practice is decidedly more pro-defendant.
The old “law of war” rules that lawful combatants must be in uniform, bearing arms openly, and attached to a state actor has been undermined by a century of irregular wars of national liberation. From Vietnam to Somalia, our military is quite simply used to fighting such “irregulars” and does not find that behavior, without more, to be a serious offense. Americans in general are also unlikely to subject individuals to group liability for the actions of others. It appears the military panel here distinguished pure terrorists from mere fellow travellers. The al Qaeda forces in Afghanistan, in contrast to the 9-11 hijackers, were primarily involved in a conventional war with the Northern Alliance and were in the country by voluntary arrangement with the Taliban regime. It is natural that being executed or punished harshly for this offense and little more would be anathema to the average American soldier, who is unusually willing to look sympathetically on a man “fighting for his country” or, in this case, a sincerely acknowledged cause. The rhetoric of critics who predicted summary convictions in kangaroo courts should be revisited too, as Hamdan’s sentence was only 5 and half years.
The military’s light punishment of Hamdan has undermined the strategic purpose of the military tribunals. If that strategic purpose of swift and harsh punishment for mere membership in al Qaeda is truly worth pursuing (and I think it is), the administration should not allow misplaced sympathies based on the prejudices of professional soldiers to get in its way. For starters, sentencing should be made more regular and put in the hands of judges restricted by some reasonable guidelines or statutory minimums. As it stands, the worst of both worlds has been achieved by the administration’s military tribunal process: the light punishments of a civilian justice system coupled with unorthodox procedural protections that have drawn sustained criticism from all over the world.