Trial by Tribunal
Osama bin Laden's driver should be freed.

Sunday, August 10, 2008

THE FIRST U.S. military commission since World War II rendered a stunning verdict and sentence last week against Salim Ahmed Hamdan, Osama bin Laden's former driver. The commission's decision was remarkable not because it was the first of its era but because it appeared to be measured, thoughtful and fair -- or as fair as a hopelessly flawed system could hope to produce.

A jury of six military officers acquitted Mr. Hamdan of the most serious charge of conspiracy and convicted him of providing material support to al-Qaeda. Mr. Hamdan was then sentenced to 66 months in detention, with credit for the 61 months he's already served. The bottom line: Mr. Hamdan could be -- and should be -- released before President Bush leaves office.

The matter emerged as both vindication and defeat for the administration: vindication, in the sense that the commission in this case proved not to be the kangaroo court many critics once feared and predicted; defeat, in that even military jurors and a military judge in no way bought the administration's assertion that Mr. Hamdan was a hardened al-Qaeda operative deserving of life imprisonment. After all was said and done, the jury was convinced that Mr. Hamdan was simply a low-level, uneducated father of two who stuck with a job chauffeuring Osama bin Laden because it paid well enough to support his family. It is one thing for a defense lawyer to assert such a benign explanation, another for a military jury sitting in judgment to endorse it. Apparently nothing contained in evidence introduced in secret sessions persuaded jurors to believe otherwise.

The president may yet try to extend Mr. Hamdan's detention. The Supreme Court has determined that the executive may hold without charge those, such as Mr. Hamdan, designated as enemy combatants. We support the executive's prerogative to do so, but it would be unnecessary and unwise to exercise that power in Mr. Hamdan's case.

To hold a man who has been judged to be of minimal risk to the country would make a mockery of the legal proceedings just completed. This result, mind you, was reached under a system that allows introduction of hearsay evidence and statements gleaned using coercive tactics. It is a system that restricts the ability of the defense lawyer to rebut government allegations -- and the right of defendants even to be aware of certain evidence. It is a system, in short, that should be shuttered, replaced by one with more due process for defendants, even while protecting national security prerogatives.

That Mr. Hamdan obtained such a measured and appropriate result is testament to the integrity of the participants in this matter, particularly the jurors and the judge. And we agree with what was undeniably at the heart of their verdict and sentence: Mr. Hamdan has been punished enough for his small part in what was and continues to be a vicious and violent global enterprise masterminded and operated by others.

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