Despite Stacking Deck, It Took U.S. Seven Years To Convict Bin Laden's Driver

The overriding question in the wake of the conviction of a driver for terrorist mastermind Osama bin Laden is whether he received a fair trial.

There are two answers and they depend entirely on your perspective:

* If you believe, as I do not, that the 9/11 attacks in particular and the Global War on Terror in general demanded that the bedrock judicial principles in the U.S. Constitution be cast aside and a legal system rigged by the prosecution, reliant on torture and shrouded in secrecy was called for, then you cheered the outcome of Salim Ahmed Hamdan's two-week trial before a military commission at Guantánamo Bay.

* If you believe, as I do, that the Global War to Terror is being fought to protect those bedrock judicial principles and discarding them was shameful and even cowardly, then there is no satisfaction to be gained from Hamdan's conviction.

There never was any question that the fortysomething Hamdan was not a totally innocent bystander. He readily acknowledged his relationship with Osama bin Laden and offered to help the CIA in its search for the terrorist mastermind before he was tortured. Nor that the Yemeni wasn't going anywhere even in the extremely unlikely event that he was acquitted of all charges against him since the White House had made it clear that he is signed up for a lifetime membership in the Rumsfeld Gulag.

As it is, the conviction was a rebuke for military prosecutors and only a qualified victory for the Bush administration, which despite its post-9/11 chest-pounding rhetoric, has suffered innumerable self-inflicted setbacks over the past seven years to bring Hamdan and others to trial.

Hamdan was acquitted of the more serious charges of conspiracy in the first war crimes trial since the end of World War II and was convicted of providing material support for terrorism.

While the jury of six senior military officers is sworn to secrecy, it would appear that they agreed with Hamdan's lawyer that he was not involved in the planning or execution of the 9/11 attacks, nor knew anything of substance about them, but was one of the people who drove around a very bad man who remains at large.

Long story short, despite stacking the deck, it took the U.S. seven years to prosecute and convict a lousy driver. Had he been tried in a civilian court, the material-support charge would have been a slam dunk conviction and he would have begun serving his sentence, as opposed to moldering in a cell while the Bush administration went through its extralegal gyrations, years ago.

Hamdan will likely be sentenced to a life term after a separate proceeding that began later yesterday, and it is probable that his appeal will mean an eventual return to the Supreme Court where a majority of justices ruled in his favor in the landmark Hamdan v. Rumsfeld case in 2006, the first of the three decisions against the White House's extralegal excursions.

Charles D. Swift, a former Navy lawyer who has represented Hamdan for several years, said after closing arguments on Monday that the commission was "a made-up tribunal to try anybody we don't like," and pointedly noted that Erich Kempka, Adolph Hitler's driver, was not prosecuted as a war criminal.

The presiding judge, Navy Captain Keith Allred, had earlier thrown out some statements made by Hamdan during his many interrogations because he deemed them the result of "highly coercive" questioning, which is to say he was tortured.

The trial was considered to be a test run of sorts for up to about 80 other detainees in the special facility for so-called enemy combatants at the Guantánamo brig, which is nearing the end of its notorious life following Boumediene v. Bush, the third of the three Supreme Court rulings in June that the Military Commissions Act was out of legal bounds because of its suspension of habeas corpus and its other kangaroo court trappings.

The only other conviction at Guantánamo was Australian David Hicks, who agreed to a plea bargain negotiated at the direction of Vice President Cheney because his lengthy incarceration without trial and questions about his treatment had become a political liability for the Conservative government of Prime Minister John Howard.

Both Barack Obama and John McCain have vowed to shut down the facility, which has about 270 detainees, down from a high of about 700, so Hamdan and other stragglers presumably would have to be transferred to a prison on the U.S. mainland.

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