A real Guantanamo trial begins.

The law, lawyers, and the court.
Dec. 4 2007 6:12 PM

On the Ground at Guantanamo

While the Supreme Court ponders, a real trial begins.

Salim Ahmed Hamdan. Click image to expand.
Salim Ahmed Hamdan

Wednesday, the Supreme Court will consider, for the third time in three years, whether the hundreds of detainees at Guantanamo have any legal rights whatsoever. In another courtroom, many hundreds of miles away and across an ocean, a criminal trial will begin against my client Salim Hamdan, who is accused of being Osama Bin Laden's driver. It will be a makeshift, not marble, courtroom—little more than a portable tent. If the hearing in Washington represents the grand American tradition of justice, the trial at Guantanamo represents its undoing. Only the first proceeding reflects the strength necessary to win the war on terror.

The magnificent Supreme Court building, designed by Cass Gilbert, is flanked by 16 Corinthean columns. Above them lies the profound inscription, "Equal Justice Under Law." But it is in the rickety courtroom at Guantanamo where our nation's most important trials will eventually be held. The twin hearings this morning for Hamdan and at the Supreme Court aren't really a coincidence, because the Pentagon seems to choose trial dates when the justices get involved. The trial in Guantanamo is explicitly proceeding based on the administration's belief that a detainee has no constitutional rights, even though the government wants to impose its most awesome punishments. The judges, to make matters worse, are military officers who have been hand-picked for this task. Some even said in speeches before being chosen that the Guantanamo system is fair and legal.

Advertisement

These trials are not "equal justice": For the first time since equality was written into our Constitution, America has created one criminal trial for "us" and one for "them." The rules for the Guantanamo trials apply only to foreigners—the millions of green-card holders and five billion people on the globe who are not American citizens. An American citizen, even one who commits the most horrible and treasonous act (such as the detonation of a weapon of mass destruction), gets the Cadillac version of justice—a criminal trial in federal court. Meanwhile, a green-card holder alleged to have committed a far less egregious offense gets the beat-up Chevy: a military commission at Guantanamo. Before that commission, that noncitizen will have few of the very rights America has championed abroad, and he can be sentenced to death.

So, for example, the rules for Hamdan's trial admit hearsay evidence in ways that American courts (both civilian and military) do not. The New York Times reported over the weekend, moreover, that the detainees have not been given access even to the names of the people who will testify against them. Problems such as these are bound to arise when the government's base legal theory is that the detainees have no constitutional rights. It is not surprising that Hamdan is being tried for conspiracy—the very crime that a plurality of the Supreme Court said he could not be tried for in its decision last year. The government asserts that Congress, after Hamdan's victory in the Supreme Court, made conspiracy a crime that could be tried in the Guantanamo tribunals. But, as any seventh-grade civics student knows, Congress cannot make something a crime after the fact.

The distinction that the Bush administration draws between citizens and aliens deviates from the U.S. military commission of the past, which applied the same rules to citizens and aliens alike. As Justice Antonin Scalia has said, the genius of the equality guarantee is that it forces Congress to legislate evenhandedly. When Congress can pass a law that only applies to the powerless, literally the people without a vote, those laws are bound to have problems.

President Bush has dispatched his lawyers to both courtrooms today because he hopes to cut the Supreme Court out altogether. He believes that only he can be trusted to decide the constitutionality of his own trial system. Our founders would have been mystified by the idea that the Supreme Court gets in the way during wartime. In fact, anyone with even a passing knowledge of American history would reject it. In times of armed conflict, the court has upheld almost everything our presidents have done, including acts as extreme as the internment of tens of thousands of Japanese-Americans during World War II. If you are the president, it's not easy to lose a case in front of the Supreme Court during an armed conflict; you have to try hard to pull it off.

Yet, since the president announced his Guantanamo trial scheme in November 2001, and even as he has spent dozens of millions of dollars on it, his plan has not produced a single conviction at trial, and the administration has managed to lose three times in three years.

Moments after the Supreme Court sided with Hamdan in that third decision, which rejected the radical claim that the Geneva Conventions do not apply to the war on terror, I rejected the predictable conclusion that "Bush lost." Instead, I stood on the steps of Gilbert's courthouse and said America had prevailed. A fourth-grade-educated Yemeni, accused of conspiring with one of the world's most evil men, brought his case against the world's most powerful man. He took his claim all the way to the Supreme Court. And he won. In few other countries could such a thing even be possible.

President Bush had an opportunity in 2006 to use the court's decision to America's advantage, by showcasing our strength as a people: In America, we let the court announce our leaders' mistakes in boldface print. Instead, the president decided to try, once again, to cut the Supreme Court out. That's why Guantanamo is back in Washington today—while Salim Hamdan is facing a tribunal that exists to avoid the guarantees of the U.S. Constitution.

When Chief Justice Hughes laid the cornerstone of the new Supreme Court building in 1929, he proclaimed, "The republic endures, and this is the symbol of its faith." Whatever else might be said about the Guantanamo courtroom, it will never symbolize America or what it is about.

TODAY IN SLATE

Politics

Meet the New Bosses

How the Republicans would run the Senate.

The Government Is Giving Millions of Dollars in Electric-Car Subsidies to the Wrong Drivers

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Photos of the Crowds That Took Over NYC for the People’s Climate March

Friends Was the Last Purely Pleasurable Sitcom

The Eye

This Whimsical Driverless Car Imagines Transportation in 2059

Medical Examiner

Did America Get Fat by Drinking Diet Soda?  

A high-profile study points the finger at artificial sweeteners.

I Wrote a Novel Envisioning a Nigerian Space Program. Then I Learned Nigeria Actually Has One.

A Futurama Writer on How the Vietnam War Shaped the Series

  News & Politics
Photography
Sept. 21 2014 11:34 PM People’s Climate March in Photos Hundreds of thousands of marchers took to the streets of NYC in the largest climate rally in history.
  Business
Business Insider
Sept. 22 2014 9:39 AM Adrian Peterson Has a Terrible Contract, and Cutting Him Would Save the Vikings a Lot of Money
  Life
The Eye
Sept. 22 2014 9:12 AM What Is This Singaporean Road Sign Trying to Tell Us?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Science
Sept. 22 2014 8:08 AM Slate Voice: “Why Is So Much Honey Clover Honey?” Mike Vuolo shares the story of your honey.
  Arts
Television
Sept. 21 2014 9:00 PM Attractive People Being Funny While Doing Amusing and Sometimes Romantic Things Don’t dismiss it. Friends was a truly great show.
  Technology
Future Tense
Sept. 22 2014 7:47 AM Predicting the Future for the U.S. Government The strange but satisfying work of creating the National Intelligence Council’s Global Trends report.
  Health & Science
Bad Astronomy
Sept. 22 2014 5:30 AM MAVEN Arrives at Mars
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.