Osama bin Laden’s former driver and bodyguard, and Guantanamo Bay detainee, Salim Hamdan was convicted Wednesday of committing war crimes, and he now faces a potential life sentence. Hamdan, whose case against Rumsfeld in 2006 generated one of the largest rulings against federal power issued by the Supreme Court, was found not guilty on charges of conspiracy to commit terrorist attacks.
The Hamdan v. Rumsfeld ruling contributed to the passing of the Military Commissions Act, under which Hamdan was tried and convicted. New York Times Magazine contributer Jonathan Mahler has a new book about the case called The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power, which I plan to read soon. The book will probably conflict with points made by Andrew McCarthy in his important new book Willful Blindness: A Memoir of the Jihad. Mahler wrote last Sunday in the New York Times praising the Nuremberg Trials. He then criticizes the Bush administration in the aftermath of Hamdan:
Even after the justices delivered a historic rebuke to the president, telling [Bush] that he needed Congressional approval for the tribunals, the administration pushed Congress not to depart too far from its trial procedures, opening the door for yet another successful Supreme Court challenge.
In other words, Mahler wanted Bush to ask Congress to determine the law, but then he blames the administration for the law that Congress created. This is similar to the Supreme Court majority opinion in Boumediene, where the court had previously directed the administration to obtain Congressional authority on the commissions and then ruled that the authority was no substitute for habeas corpus.
National Review Online has an editorial that captures the effect of the conviction this week. They not only recognize the conviction as a national security victory, but they correctly point out that Hamdan’s tribunal under the provisions of the Military Commissions Act actually grants more protections to accused war criminals than the Nuremberg Trials ever did. Mahler’s (and Obama’s) Nuremberg dreaming is just that. This legal battle, which is an important part of our national security, is far from over.
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