In my post yesterday, I addressed the idea of the “expert” in legal and journalistic settings. As I noted then, there were other things in Williams’ original account and the various responses to it that also tweaked my attention, and I’d now like to take the time to address some of those briefly. The first is a contention made by Williams in his original entry, as I am slightly confused. In his account of his role in Hamdan’s defence, he notes that no one tried to put Adolph Hitler’s driver on trial at Nuremberg.

And yet, here we have Bin Laden’s driver on trial at Gitmo, and Williams is adamant that he was guilty of a crime in this, in aiding Bin Laden. I am merely curious: is this because Hamdan was arrested whilst transporting weapons, or is it simply because of his job as Bin Laden’s driver? Geoffrey S. Corn suggests that Hamdan was convicted “not because his conduct fell into a well established category of conduct prohibited by international law during armed conflict, but simple because Congress took a crime never before considered a crime and gave it that title.” (Thanks to Tim Stevens for this).

But this is a minor point.

Williams takes the optimistic point that Hamdan’s trial is going to help to rehabilitate the stature of the United States in the world, as it shows that someone in Gitmo can indeed be given a fair trial. Others, most notably Stevens, have been more cynical. I tend to agree with the cynical side. I point to the example of the Canadian national, Omar Khadr, who was arrested by American forces in Afghanistan in July 2002, and charged with providing support for terrorism and murder of an American soldier, amongst other things. Time and again, the military tribunal has ruled in his favour, but the Bush Administration has refused to release him (many Canadians, short of our government, have demanded he be transferred back to Canada). It has instead continued to hold him at Guantanamo, and think up new charges and more creative ways to try him.

What this shows is that à la Hamdan, it is possible to get a fair trial, or at least fair treatment at Guantanamo -if one can get past the torture used on the detainees.  But that the Bush Administration is not interested in justice at this point, it continues to hold detainees there against the advice of American courts, and even, occasionally, the military tribunals. This does not inspire confidence of any sort.

Taken together, what this shows is something akin to the Star Chamber of medieval England. If the constitution or legal system gets in the way of the Administration’s goals, well, never mind, other, more creative ways can be used to get around such niceties. This does not inspire any confidence in the policies of the American state, it does not help to restore the image of the United States in the world. What would inspire confidence is if the Administration accepted the rule of law in the first place, something which Guantanamo was conceived of to avoid. Fortunately, both candidates for President believe that Guantanamo should be closed down.

William C. Snyder writes of the flexibility of military commissions at Guantanamo, and the possible rationale behind their creation, suggesting that perhaps Hamdan was lucky to have been tried there and not in a regular court of law in the USA. And while he brings up some interesting points, I would like to point out that it is unlikely, at least from what I read in Williams’ post and in the various news articles on Hamdan’s trial, that it would have unfolded the way it did if it were held in a regular court of law. For one, the prosecution cannot hide information from the defence in a court of law. Disclosure must be made. For another, the burden of proof, at least it seems to me, is generally higher for the prosecution in a court of law.