Does the outcome of prosecution of Salim Hamden, Osama Bin Laden's former driver, prove that military commissions work? Emphatically not, according to panelists looking to the future of prosecutions and legal rights of Guantanamo detainees "After Boumediene v. Bush."

Hamden was convicted of providing material support for terrorism, acquitted of conspiring to attack the United States, and sentenced to 66 months in prison, with credit for the six years he already has been held in detention.

But Hamdan's trial was based on coerced evidence, accepted such irregularities as admission of hearsay evidence and ended with an sentence imposed for violation of a law enacted after the fact, agreed the panelists.

Speakers were Deborah Pearlstein, a visiting scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University and the founder of the Law and Security Program at Human Rights First; Sidney Rosdeitcher, Senior Policy Adviser to the Brennan Center for Justice at NYU Law School and co-author of the American Bar Association's amicus brief in the Boumediene case; and Paul Wolfson, who argued for Boumediene before the high court and chairs an amicus brief committee in the ABA Section of Individual Rights and Responsibilities. Neal Sonnett, incoming chair of the ABA section and chair of the ABA Task Force on the Treatment of Enemy Combatants and the ABA's trial observer for the Guantanamo Military commission trials, moderated the discussion.

Wolfson provided an overview of how Boumediene got to the Supreme Court, and its principal holdings. The court did not create a "bright line rule" for when persons detained outside the physical boundaries of the U.S. are entitled to habeas, but said it applies to Guantanamo detainees because the facility is under the complete defacto dominion of the United States and there was no credible showing habeas hearings would interfere with our military mission. It rejected the government's argument that combatant status review tribunals provided adequate review and that the Detainee Treatment Act is an adequate substitute for habeas.

While the court ruled prisoners are entitled to meaningful judicial review of the basis for their detention, and reviewing courts must have power to order their conditional release, it did not decide the content of law to be applied in habeas hearings or who is an enemy combatant, and did not provide any specifics about procedures to be used, said Rosdeitcher.

"These are the most live questions now" on whether habeas review will just be "pro forma proceedings," he said.

Pearlstein reviewed proposals launched both before and since Boumediene to provide for adequate detainee trials. Several scholars have joined to suggest national security courts be created to try terrorist suspects whom authorities believe can be prosecuted for war crimes or violations of domestic criminal law. Advocates of the plan say it would develop expertise among judges and lawyers in a single court, and provide procedures to protect classified documents. Their proposal does not address how to handle detainees now in custody or some undefined future group of detainees who cannot be tried, but who are believed to be too dangerous to be released and who may have intelligence value, she said.

Pearlstein also noted legislation has been introduced in both houses of Congress to establish habeas corpus procedures. While she cited a general perception that action on the bills is not likely before the presidential election, she and others on the panel speculated that it likely will return after the election, and could become an issue in campaigns.