66 Months? For You My Muslim Friend, 30 Years!

[Aaron]

The Beeb

Thanks to Captain Seafort for reminding me of this:

Bin Laden driver given 66 months

Osama Bin Laden's former driver has been sentenced to five-and-a-half years in prison at the first US military trial in Guantanamo Bay.

Salim Hamdan was convicted on Wednesday of supporting terrorism, but acquitted of conspiracy to murder.

Prosecutors had demanded a sentence of not less than 30 years.

On time served Hamdan could be released in five months but the Pentagon has said he will still be retained as an "enemy combatant".

The US has always argued it can detain such people indefinitely, as long as its so-called war on terror continues.

The Pentagon said Hamdan would serve his sentence and then be eligible for review.

Regret

The BBC's Kim Ghattas at the trial says the sentence is a dramatic snub to the Bush administration and came after just one-and-a-half hours of deliberation.

The jury of six US military officers, not the judge, imposed the sentence under the tribunal rules.

"It is my duty as president [of the jury] to inform you that this military commission sentences you to be confined for 66 months," a juror told Hamdan.


HAMDAN CHARGES
Conspiracy: Not guilty of two counts of conspiring with al-Qaeda to attack civilians, destroy property and commit murder
Providing support for terrorism: Guilty on five counts, including being the driver and bodyguard for Osama Bin Laden, a man he knew to be the leader of a terrorist group. Not guilty on three other counts

Our correspondent says Hamdan looked nervous as he walked in for sentencing but after hearing it, he told jurors: "I would like to apologise one more time to all the members and I would like to thank you for what you have done for me."

The judge, Navy Capt Keith Allred, told Hamdan: "I hope the day comes when you return to your wife and your daughters and your country."

Hamdan, who is aged about 40, smiled as he left court and said thank you to those in the room.

After the sentencing, Pentagon spokesman Bryan Whitman said: "He will serve out the rest of his sentence. At that time he will still be considered an enemy combatant.

"But he will be eligible for review by an Administrative Review Board."

The boards decide annually on the threat posed by detainees and the possibility of their transfer or release.

The White House had earlier said the trial was "fair".

The defence is still likely to go ahead with the appeal it announced on Wednesday.

Rights groups have condemned the tribunal system. Amnesty International said it was "fundamentally flawed" and should be abandoned.

'Worked for wages'

In his earlier plea for leniency to the jury, Hamdan said in a prepared statement: "It's true there are work opportunities in Yemen, but not at the level I needed after I got married and not to the level of ambitions that I had in my future."

He said he regretted the loss of "innocent lives".

Hamdan had admitted working for Bin Laden in Afghanistan from 1997 to 2001 for $200 (£99) a month, but said he worked for wages, not to wage war on the US.

About 270 suspects remain in detention in Guantanamo Bay.

Among the dozens of other inmates due to be tried there in the coming months are men accused of plotting the 9/11 attacks.

This has just become a grotesque parody of justice, gotta love it when they setup the tribunals to punish the enemy how they want and even they defy the wishes of the Administration.

So yeah, 66 months including time served but he still gets retained as an enemy combantant afterwards.

Five months...

[Graham Kennedy]

This is alice in wonderland stuff. They go to all the trouble of arranging a show trial for the guy, he's convicted and sentenced... and now they say after he's served his sentence they may well just keep him anyway. Truly surreal.

[Captain Seafort]

This has just become a grotesque parody of justice, gotta love it when they setup the tribunals to punish the enemy how they want and even they defy the wishes of the Administration.

That's the most amusing thing about the whole business - even with the mot heavilly staked deck they could get away with, there were still a couple of not guilty verdicts on the more serious charges, and a light sentence.

So yeah, 66 months including time served but he still gets retained as an enemy combantant afterwards.

Is the US trying to portray itself in the worst possible light? From the point of view of their international reputation they'd have been better off simply not holding the trial.

[Graham Kennedy]

Lol, on the one hand the civilised countries are horrified at them for having these show trials. On the other the dictators are probably laughing their asses off because, hey, they can't even get their show trials to do what they want!

[sunnyside]

Well I guess shame shame on Britain then. They didn't even bother having trials and apperantly held 400,000 Germans illegally during WWII instead of sending them back. Not letting them go until well after the war was over.


Of course I get that the whole war on terror thing is a less clear cut situation, and this guy in particular seems dubious as an actual enemy combatant (though we'll see what happens at his review I guess, though he did work personally with OBL).

However in the case of actual enemy combatants, say someone they caught assembling IEDs, I don't think they should be obliged at all to release them until we're at least out of the country they were fighting in.

[Graham Kennedy]

Well I guess shame shame on Britain then. They didn't even bother having trials and apperantly held 400,000 Germans illegally during WWII instead of sending them back. Not letting them go until well after the war was over.

They were prisoners of war, sunnyside. Are the people in Guantanamo bay prisoners of war? Or are they criminals?

However in the case of actual enemy combatants, say someone they caught assembling IEDs, I don't think they should be obliged at all to release them until we're at least out of the country they were fighting in.

If the Americans want to say that these people are prisoners of war I'm good with that. If so then by law they are required to be treated according the the Geneva conventions. Which amongst other things would mean that you can't have trials, and you can't torture them. Those Germans you referenced earlier were treated according to the Genva conventions, for instance. So were British prisoners of war in Germany for the most part.

Of course if you want to say that they aren't prisoners of war and are just criminals, then they need to be tried before a jury of their peers in accordance with due process of law. And again, no torture.

Take your pick.

[Captain Seafort]

Well I guess shame shame on Britain then. They didn't even bother having trials and apperantly held 400,000 Germans illegally during WWII instead of sending them back. Not letting them go until well after the war was over.

Slight difference - WW2 was a war (i.e. a conflict between two nation states or state-like bodies), and those held were nationals of the nation we were at war with. Those held were held in order to prevent them participating in military operations against the UK (and afterwards to help clean up the mess they and their friends were responsible for).

The US is not fighting a war. Those held at Guantanamo are not soldiers, but criminals. As such they should be tried and either punished appropriately and released at the end of their sentence (if found guilty) or released (if not).

[sunnyside]

They're being classed as "enemy combatants" which puts them in the rough catagory of spies and the like. And at any rate the US is fighting wars in Afganistan and Iraq at the moment.

Now I'm not an expert on the geneva conventions but I do believe trials are allowed.

*quick search*
here we go

A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.

Which basically says that you can take them to trial but you couldn't hand down a punishment that you could do to them anyway as a POW. i.e. you can't order them killed or some such.

However I think they're just handing down prison sentences.

On the torture thing the presidents rather dubious stance is that what is being allowed officially isn't torture. Just "interogation". Most people consider him to have crossed a line with waterboarding.


For more info on policy check out
http://en.wikipedia.org/wiki/Enemy_combatant

[Captain Seafort]

They're being classed as "enemy combatants" which puts them in the rough catagory of spies and the like.

I'm well aware of what the US is calling everyone at Gitmo. What I'm pointing out is that the classification is incorrect - they're either POWs (in which case they should be released, as both the Afghan and Iraqi wars ended years ago) or they're criminals (in which case they should be tried and either sentenced or released as appropriate).

And at any rate the US is fighting wars in Afganistan and Iraq at the moment.

No, it isn't. It's fighting insurgents and terrorists. As I pointed out above, wars are conflicts fought between states and state-like entities. The current conflicts are glorified police operations against criminals. Exceptionally well-armed criminals, with political objectives, but criminals nonetheless.

However I think they're just handing down prison sentences.

Against Hamdan, sure. If you think anything but a death sentence will be handed out to Khalid Sheik Mohammad I'd like to know what you've been smoking.

[Graham Kennedy]

They're being classed as "enemy combatants" which puts them in the rough catagory of spies and the like. And at any rate the US is fighting wars in Afganistan and Iraq at the moment.

Historically all that phrase means is "member of the other side". The idea that it represents some special new category of person in warfare is something the US has invented. I might as well declare that they are "Arsfargles" and so I can treat them whatever way I like.

As defined by the US, an enemy combatant is "an individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." Which in other words is anybody who fights the US, or supports anybody who fights the US. Which means that they've decided that the term encompasses ALL enemy soldiers, not "spies and the like".

As the International Criminal Tribuneral put it "Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law."

For illegal combatants, which spies and such can be classed as, the enemy personnel need to be caught behind the lines, in disguise, trying to gather information. Most of these people were nothing of the sort.

As for trials, the conventions state "POWs cannot be tried or punished simply for their participation in the armed conflict, they may be prosecuted for war crimes and crimes against humanity and for common crimes under the laws of the detaining power or international law"

As i understand it, this person was a driver. He was convicted of "conspiring with al-Qaeda to attack civilians, destroy property and commit murder" according to the OP article. None of that seems to be a war crime to me.

[sunnyside]

No, it isn't. It's fighting insurgents and terrorists. As I pointed out above, wars are conflicts fought between states and state-like entities. The current conflicts are glorified police operations against criminals. Exceptionally well-armed criminals, with political objectives, but criminals nonetheless.

Alright so the true war portions have been won and now we're down to insurgency. Still just considering an insurgent a simple criminal is obviously not quite right. And putting them back on the streets while the insurgency is still going on should be obviously stupid.

Actually from the wiki link it seems we're considering this an Article 3 type situation from the geneva convention as this is an

armed conflict not of an international character

It is rather clumsily worded to my reading. And at any rate seems to leave the situation fairly open to interpritation. Particularily in regards to armed combatants. I'm guessing it's trying to be accomodating for dealing with things like rebels, insurgents, and other oddities.

So, actually, it would seem we're acting well within the Geneva convention.

Well, except that Bush takes some liberties with what he considers to not be torture.

I

[Captain Seafort]

Alright so the true war portions have been won and now we're down to insurgency. Still just considering an insurgent a simple criminal is obviously not quite right.

Why?

And putting them back on the streets while the insurgency is still going on should be obviously stupid.

Fine - charge them with murder, attempted murder, or conspiracy to murder, and if they're found guilty punish them accordingly. Otherwise they should be released.

[Graham Kennedy]

If you don't want to treat an insurgent like a criminal, then you treat them like an enemy soldier. It's really very simple.

[Captain Seafort]

If you don't want to treat an insurgent like a criminal, then you treat them like an enemy soldier. It's really very simple.

I would say that treating insurgents like soldiers would be a bad idea - it legitimises their aims to a certain extent, like granting IRA prisoners political status did. Criminalisation makes it clear that they're just a bunch of thugs trying to blackmail the government into kow-towing to them.

[sunnyside]

Why?

For the same reason it isn't quite right to consider a soldier in a traditional war a simple criminal. Not the least of which is the obvious likelyhood that they'd resume their attacks.

Fine - charge them with murder, attempted murder, or conspiracy to murder, and if they're found guilty punish them accordingly. Otherwise they should be released.

There are a number of issues with this.

First of all it's a little fuzzy under the Geneva conventions if we'd be allowed to punish them accordingly. I.e. to execute any captured combatatant that commited "murder" in regards to a soldier. Doubly so since we could probably level charges of "espionage" or "treason" against them and just have some mass lethal injections.

If we don't charge them with executable offenses the sentences start getting short fast. Meaning we'd be releasing the guys makin the IEDs and such long before the insurgency is over. Which I really think should be obviously stupid. I honestly can't see how you don't understand this to be a bad idea.

At any rate my point at the moment is that it seems via Article 3 of the geneva conventions that situations like this are considered and, except for creatively defining torture, we are holding to them.


@ GrahamKennedy

From the bit I posted earlier the Geneva conventions are clear in that someone can be a prisioner of war and still be tried as a criminal. Though as Seafort pointed out there isn't actually a war, hence the use of Article 3 of the Geneva convention.