Michael Dorf asks "If the Government Plans to Hold Salim Hamdan Indefinitely, What Was the Point of Putting Him on Trial?"
It's a good question. Unfortunately, Dorf isn't cynical enough to give us what I suspect is the real answer.
It's quite simple. If Hamdan was found guilty, and given a long sentence, then the Bush administration could a) do what it had always wanted to do, but now with a greater veneer of legitimacy and b) retroactively claim that the results justified their original due process-free determinations under which Hamdan was held in the first place.
But Hamdan was not given a long sentence, and was acquitted of the most serious charges. So where does that leave the Bush administration? In the same position it was before we started: defending extra-legal indefinite detention. It's not really any loss, except now they have the advantage of being able to call Hamdan a convicted war criminal and the disadvantage of having a determinate metric (a timeline!) that can be waved in their face.
Currently, detainees are held on the claim that they are enemy combatants in an ongoing conflict between the U.S. and Al Qaeda/ Taliban/ Iraqi insurgents. In a convoluted version of POW rules, such combatants can be held until the conflict ends. They are not being punished, merely neutralized.
ReplyDeleteIn contrast, war criminals are put on trial, and if found guilty, are punished. What I actually find puzzling about the government's choice to put Hamdan on trial is that under their theory, it doesn't make sense to charge Hamdan with a crime until the conflict has ceased.