Nuremberg Gravity, Guantánamo Folly

In a deeply rich irony, there were references aplenty to the Nuremberg trials uttered by both prosecution and defense during the two-week "trial" of Salim Ahmed Hamdan's before a military commission at Guantánamo Bay.

The series of real trials (large photo) in the wake of World War II in the German city of Nuremberg resulted in the conviction of 24 of the most important captured leaders of Nazi Germany. There also were subsidiary trials of doctors and judges loyal to the Hitler regime.

Those trials were by all accounts scrupulously fair and adhered to carefully delineated and widely agreed upon rules of what constituted a war crime and who should be charged with such crimes in the wake of the most horrific conflict in modern history.

Which made the prosecution's repeated invocations of Nuremberg in arguing Hamdan's guilt so fatuous, as well as making a further mockery of proceedings against the self-confessed driver for 9/11 mastermind Osama bin Laden that were hot wired to guarantee an outcome favorable for prosecution and president.

As it is, both barely got that because Hamdan was found guilty of only a lesser charge of material support for terrorism and acquitted of the far more serious charge of conspiracy although prosecutors were unable to say when and with whom he conspired even with the use of hearsay testimony and conveniently secret documents.

There is perhaps no better contrast between the gravity of Nuremberg and the folly of Guantánamo than the fact that Erich Kempka (small photo), Adolph Hilter's longtime driver, was never prosecuted. This is because he did not fit the definition of a war criminal.

Nor did Hamdan.

His lawyer, former Navy lawyer Charles D. Swift, noted that disconnect in his closing arguments and following the verdict spoke a very large truth in describing the commission that tried Hamdan as "a made-up tribunal to try anybody we don't like."

Air Force Colonel Morris Davis, the former chief prosecutor at Guantánamo, put this into stark relief when he testified that he had been informed by his superiors that only guilty verdicts were allowable and high-profile cases should be brought quickly to help Republican candidates.

The Bush administration's embrace of this system is further illustrated by the fact that after his arrest in Afghanistan in November 2001, Hamdan made an offer of assistance because he apparently felt betrayed by Bin Laden, whom he claimed in testimony and an apology to 9/11 victims at sentencing yesterday he didn't even know was a terrorist until after the attacks.

Hamdan's offer has not been detailed, although it is likely that it was to help the CIA track down his former boss. But the White House was so determined to prosecute anyone it could get its hands on no matter how insignificant that it refused the offer. There is, of course, no way of knowing if it would have borne fruit, and considering how elusive Bin Laden has been, it probably would not have.

Nobody is suggesting that the U.S. should be soft on terrorists, although that was very much the case in the Dick Cheney-directed plea bargain arranged for David Hicks, an enemy combatant who was hustled back home to Australia from Guantánamo because the vice president's comrade at arms, Prime Minister John Howard, was getting heat about Hicks' lengthy incarceration without trial and the treatment that he was receiving.

The 5 1/2-year sentence that Hamdan was given late yesterday by the jury of senior officers was a dramatic snub to the prosecutors, who had asked for not less than 30 years after backing off from their initial request for life.

This was perhaps a reflection of the deep disaffection that Colonel Davis and many other military lawyers and other officers feel for the military commission system and the systematic use of torture. This is because they know that turnabout -- the capture and torture of an American combatant by terrorists -- would only be fair play.

Because the judge had ruled earlier that Hamdan be credited with time served, he technically could be released in five months. But there is an Orwellian undertone even to this because the White House has insisted that Hamdan is signed up for an open-ended membership in the Rumsfeld Gulag so long as the Global War on Terror continues.

Beyond it's inherent corruptness, a signal message of the Hamdan "trial" is that the Bush administration has cheapened the concept of war crimes that so well served American prosecutors in both Germany and Japan by elevating mere gofers to the same status as terror masterminds while making a mockery of justice and further sullying the once lofty reputation of the U.S.