There Are Still Heroes

[Artist's sketch of Salim Hamdan on trial. Image credit: Found at the AFP article.]

The U.S. military, the Army and Marines in particular, have been given a dreadful job to do the last five years, and they've done it as well as anyone could have expected. While there have been exceptions, for the most part they have maintained a professional attitude during a years-long counterinsurgency. That's no mean feat. Nevertheless, as a citizen of this country, I've never been prouder of this generation of soldiers than they made me on Thursday:

A US military jury on Thursday rejected government prosecutors' demands for a stiff sentence for Osama bin Laden's ex-driver, Salim Hamdan, saying he should only spend another five months in prison for supporting terrorism.

The jury delivered a sentence of 66 months, and taking into account the time Hamdan has already served, the decision added an additional five months of prison time -- though the Pentagon said it has no immediate plans to release him.

The outcome was a defeat for prosecutors who had portrayed Hamdan as a dangerous "Al-Qaeda warrior" who should be put away for at least 30 years for his work for the terrorist chief bin Laden, who remains at large seven years after the September 11 attacks.

Light Sentence For bin Laden's Driver In Guantanamo Trial

The AFP story is correct - the Bush Administration wanted to win this one. That they didn't is due to the fact that the military justice system didn't phone this one in as their bosses no doubt expected them to. One reason was Hamdan's defense attorney, Charles Swift:

Four-and-a-half years ago I went down to Washington to profile Hamdan's newly assigned defense lawyer, a JAG lawyer named Lieutenant Commander Charles Swift. A gift from the magazine gods, Swift was a blue-eyed, barrel-chested Navy officer who spoke not in sentences but in stories. Between mouthfuls of fried prawns at a Chinese restaurant at a strip mall in northern Virginia, he told me that he was dead serious about providing a vigorous defense for Hamdan.

I was, I'm embarrassed to say in hindsight, a little surprised. Like the government, which had expected Swift to persuade his client to plead guilty to whatever charges were ultimately brought against him, it had never occurred to me that a member of our own military -- whose headquarters had, after all, been one of the targets of the 9/11 attacks -- would be inclined to put up much of a fight on behalf of an accused terrorist.

Salim Hamdan's Tribunal and the Strength of the Constitution

Swift's stern defense of his client certainly wasn't a career-enhancing move, at least not if he wanted to stay in the military. Nevertheless, he did what was best for his client, not himself:

[T]wo men -- one a Naval Academy screw-up [Swift] and the other a child of Indian immigrants -- held the rights of an accused terrorist as dearly as they held their own, has often ... of patriotism. Swift lost both his career and his marriage thanks to the case. [Constitutional lawyer Neal] Katyal risked a rising legal career, in addition to going tens of thousands of dollars into personal debt. What other country would inspire such sacrifice, and would allow such a public challenge to its president?

Salim Hamdan's Tribunal and the Strength of the Constitution

The judge in the case followed Swift's example, and gave an appropriately light sentence, which basically amounts to the time Hamdan has already been in prison:

The judge in Guatanamo bravely sentenced Hamdan to five and a half years in prison, with credit for time served. That means, he should be out in five months: just two weeks before Bush leaves office.

Hamdan Ruling Puts Onus on Next President

Of course, all that might have gone for naught had the officers who made up the jury decided to do what the Administration wanted them to do. Rather than "go with the flow", they listened to the evidence presented and made a good call. Former Army Colonel Patrick Lang explains how the officers on the jury probably reached their decision:

Hamdan will be released before the end of the year. The six officers have all had soldier or sailor drivers. They decided that they knew what the role of a driver is, and that this role did not justify further confinement for Hamdan. They also decided that Hamdan was not a planner in Al-Qa'ida or anything other than someone who drove Usama bin Laden for a money salary. This judgment was reflected in their refusal to convict him on more serious charges.

Hamdan Will Go Home

This military tribunal system was set up with the idea of getting these folks incarcerated for life with the least effort possible. Yet the people who participated in the process took it far more seriously. As Jonathan Mahler observed, they made it work in spite of itself.

In contrast to craven opportunists we have in Congress, these people honored their oaths to protect the Constitution, even though it may mean trouble down the line for them.

I'm sure if you said this to these people, they'd just answer that it was their job to do as they did. In truth, it is their job. Unfortunately, they seem to be among the few government officials these days who take that job seriously. Under those circumstances, doing their jobs is much harder, and much more exceptional, than it ought to be. Charles Swift, in particular, lost far more than anyone should to do his job.

And that, ladies and gentlemen, is what real heroes do.