Mixed results for military tribunals

After years of battling to install a flawed system for dealing with terrorist detainees, the Bush administration finally got its first trial by military commission, a proceeding not seen since the aftermath of World War II.

The defendant was Salim Ahmed Hamdan, who thinks he is about 40, has a fourth grade education and said that as the father of two he took a job with al-Qaeda for the money. The military court described him as "a small player."

He was convicted of material support of terrorism. Hamdan was, after all, a member of al-Qaeda and Osama bin Laden’s driver and bodyguard at the time the terrorist mastermind was plotting 9/11.

He was found not guilty of three other counts, including the most serious charges, that he was part of the conspiracy to attack the United States.

The chief defense lawyer called the process a travesty but said he was not unhappy about the outcome.

White House spokesman Tony Fratto said the split decision showed that the military commission system is "a fair and appropriate process."

Not exactly. What it shows is that the six military officers who served as jurors were fair and careful. They deliberated on their verdict for eight hours over three days. And it shows that that the presiding judge, Navy Capt. Keith Allred, was also fair and deliberate. Early in the trial he threw out evidence obtained by coercive measures.

The outcome does not show that the system itself is fair. Certainly most impartial observers don’t see it as such. The commissions allow for closed-door proceedings, hearsay evidence, secret testimony, self-incrimination and evidence obtained by cruel and inhuman methods.

From the outset, the Bush administration should have done what the Geneva Conventions requires and tried them in the U.S. military’s well-practiced, well-respected system of courts martial. But the White House was determined to get directed guilty verdicts. One former military chief prosecutor said the administration wanted some high-profile guilty verdicts before the November elections.

The White House will have to make do with Hamdan. The next case — Omar Khadr, a Canadian charged with killing an American soldier — isn’t due up until October.

Hamdan has been something of a legal thorn in the administration’s side. It was his appeal to the Supreme Court in Hamdan v. Rumsfeld that resulted in the high court affirming the right of habeas corpus for detainees and sending the commission system back to Congress for reworking.

The next step in Hamdan’s case is a military appeals court and after that he can appeal to the U.S. civilian courts. Hamdan may have received only a fourth grade education in his native Yemen but he’s getting a first class legal education in our custody.