Elmer Smith: Lovers of our Constitution can't feel good about this trial

WE HAVE SEEN the enemy and he is Osama Bin Laden's driver.

Salim Ahmed Hamdan, 44, convicted this week by a panel of U.S. military officers of "material support for terrorism," is the first "terrorist" to be tried by a military commission in 50 years.

He won't be the last.

Eventually, we will bring the entire motor pool to justice, including the craven cowards who emptied the ashtrays in Osama's jeep.

For the satirically challenged, let me be real clear: No American who cares about the rule of law, or about what our Constitution says are our God-given rights, can feel good about this travesty of a trial.

The panel of six military officers was all but directed to render a guilty verdict against a man that even the judge called "a small player." If they had failed to convict him they would have risked the sudden and unceremonious end of their military careers.

That's what happened to Navy Lt. Commander Charles Swift, Hamdan's first defense attorney. Swift filed a habeas corpus petition on behalf of Hamdan that led the U.S. Supreme Court to invalidate the military commission the White House had set up to try detainees.

"Its structure and procedures violate the Uniform Code of Military Justice and all four Geneva Conventions," Justice Stevens wrote for a 5-3 majority. The high court ruled that the commission excluded the accused and his attorney from any part of the trial that "the prosecuting attorney decided to close."

As a result, Stevens wrote, Hamdan "will be and indeed has been excluded from his own trial."

The landmark 5-3 ruling forced the Bush administration to draft the slightly improved procedure that Hamdan was convicted under Tuesday.

Swift, who had been designated as one of the top 100 defense lawyers in the U.S. and lauded by his commanders, got kicked out of the Navy two weeks after the ruling under an "up or out" rule, which dismisses officers who fail to get promoted.

"Charlie has obviously done an exceptional job," wrote Marine Col. Dwight Sullivan, the Pentagon's chief defense attorney and Swift's superior officer.

"It's quite a coincidence that he was passed over for promotion within two weeks."

Swift left with his integrity intact. The Bush military commisions haven't fared nearly as well.

That's not just the ranting of a liberal columnist. The U.S. Supreme Court and two military officers who served as chief prosecutors at Guantanamo raise serious concerns about the brand of military justice being meted out there.

Former Chief Prosecutor Col. Morris Davis testified in an open proceeding that he was told that his superiors would accept only guilty verdicts. He didn't wait to get fired. He resigned in 2007 and told the Los Angeles Times that "full, fair and open trials were not possible" at Guantanamo under current procedures.

Freedom-loving Americans should be very afraid when we see military officers get punished for defending the Constitution they're sworn to uphold, or when we ignore the very same laws of war and Geneva Conventions that we cite to protect our own soldiers.

Hamdan got a light sentence yesterday from the panel, making him eligible for release in just five months despite the prosecutors' request for at least a 30-year sentence.

Not that it matters. President Bush had already declared his authority to hold Hamdan indefinitely even if he had been acquitted.

In fact, he was acquitted of the most serious charges. Even this stacked court rejected the charges that Hamdan had conspired with senior al Qaeda members, and that Hamdan was part of a 2001 conspiracy in Afghanistan to kill American soldiers and civilians.

They convicted him of driving Osama's limo and of "ferrying" surface-to-air missiles in the car's trunk. They know he did this because he told them so after intensive interrogation using tactics forbidden by the Geneva Conventions and the U.S. Constitution.

Hamdan can appeal all the way back to the Supreme Court. They will either set aside this verdict or set aside the U.S. Constitution.

I'd gladly kick Hamdan's case all the way back to traffic court to preserve the Constitution. *

E-mail to smithel@phillynews.com or call 215-854-2512. For recent columns: http://go.philly.com/smith