McCarthy on Hamdan

Here’s an excerpt about the Hamdan verdict — basically a revolting sentence of time served — written by Andrew McCarthy, the former federal prosecutor of Blind Sheikh Omar Abdel Rahman and the 1993 WTC bombers.

In Hamdan’s case, we thus have a double problem. First, the jury of military officers somehow decided that material support to our enemies, by a guy who actually protected bin Laden and transported weapons for al-Qaeda, was worth only five-and-a-half years in jail. Second, the judge then made matters incalculably worse by effectively giving Hamdan what everyone (including the judge) must know will be taken as a get-out-of-jail card: i.e., full credit for the five years Hamdan has already been in custody as an enemy combatant. That turns the 66 months into six months.

Understand: there is no requirement to try captured enemy combatants for war crimes. As the laws of war have long provided, and as the Supreme Court has recently reaffirmed, wartime enemy combatants may be held without trial for the duration of hostilities. War crimes charges are an additional measure against combatants who commit egregious law-of-war violations.

Yet, that distinction has been lost in the media’s coverage. Absurdly, Hamdan is now in a better position as a convicted war-criminal than those who have merely been detained as enemy combatants without war crimes charges. The American military has managed to value terrorist war crimes as a less serious impropriety than terrorist war participation. Instead of highlighting Hamdan’s conviction, the government will now spend its time explaining why he is still being held after his sentence is over.

McCarthy’s point about the right of countries to hold war prisoners for the duration of the war is underscored by the fact that the Geneva Conventions gives the detaining country that power — a point certainly lost among the public and media.

In her book, Honer Bound: Inside the Guantanamo Trials, former Guantanamo Bay JAG officer Maj. Kyndra Rotunda-Miller emphasized this cart before the horse approach:

[Rotunda-Miller]: Under the law, the US can hold enemy combatants until the end of hostilities. If detainees are tried during the war, convicted detainees could conceivably complete their sentences and been released before the war is over and ironically before enemy combatants who were not prosecuted for war crimes are released. Furthermore, defense attorneys will not be interested in plea-bargaining for eight shorter seconds without knowing one that sentence will begin to run due to the fact that we have no idea won a war will end.

So long as we are at war with terrorists, perhaps the US has more to lose than gain by trying detainees in Guantanamo Bay. Simultaneously fighting a war and prosecuting war criminals simply does not work. Ordinarily [as in the Nuremberg trials] we prosecute war criminals after, not during the war.

Well, it’s the first of many tribunals. As Michael Navarre noted yesterday, perhaps it’s best that they began with a small fish like Hamdan to get the kinks out of the system prior to going after an unrepentant boastful killer like Khalid Sheik Mohammed.