Jury Delivers Split Verdict
In Guantanamo Bay Trial
By JESS BRAVIN
August 6, 2008 12:41 p.m.
GUANTANAMO BAY, Cuba — A military commission convicted Osama bin Laden’s former driver of supporting terrorism, the first verdict delivered here since President George W. Bush announced plans in November 2001 to try accused foreign terrorists in a separate system of offshore military courts.
The jury of six military officers also acquitted Salim Hamdan of the other charge prosecutors lodged, conspiracy to commit al Qaeda terrorist attacks, rejecting government efforts to paint the former driver as a significant member of Mr. bin Laden’s inner circle.
Associated Press
Salim Hamdan on trial in Guantanamo Bay, Cuba.
“He was acquitted of the most serious charge, conspiracy, and he’ll never face that charge again,” said Michael Berrigan, the deputy chief defense counsel.
Prosecutors weren’t immediately available for comment, but the Pentagon spokesman here, Cmdr. J.D. Gordon, said, “Mr. Hamdan received a full and fair trial. The jury reached their decision based on the law and the facts presented in court.”
Both charges carry a potential life term. The jury will determine punishment after a sentencing hearing, set to begin at 2 p.m. Wednesday and likely to conclude by tomorrow.
The government plans eventually to try 80 Guantanamo prisoners by military commission, including Khalid Sheikh Mohammed and four others accused of organizing the Sept. 11 attacks. The system has been fraught with internal problems and legal setbacks in the seven years since Mr. Bush first proposed it and its future under the next president remains unclear. Democratic candidate Sen. Barack Obama voted against the 2006 measure authorizing the trials; his Republican opponent, Sen. John McCain, supported it but has said he would like to close the Guantanamo base.
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07/23/08Mr. Hamdan, 37 years old, bowed his head and appeared to weep softly after the verdict was read in the windowless courtroom built inside an old aircraft control building. A slight man wearing a charcoal blazer and the traditional headdress of his native Yemen, Mr. Hamdan has been at the center of a legal storm over due process and presidential powers that repeatedly has vexed the highest levels of all three branches of government.
In 2006, the Supreme Court struck down Mr. Bush’s initial effort to try Mr. Hamdan before a military commission that Congress had not approved, and which denied defendants significant rights, such as attending their own trials and appealing to an independent court. Congress responded by authorizing a modified version of the commissions, providing defendants several rights Mr. Bush initially sought to deny, including the possibility of Supreme Court review.
Critics have complained the new system still fell short of fairness. Mr. Hamdan’s attorneys say one example is the charge on which their client was convicted — providing material support for terrorism — which has been a civilian crime for years but they say has not been considered a war crime.
Even if Congress can declare it a war crime, defense attorneys say they will argue on appeal that Mr. Hamdan, who was captured in November 2001, cannot be tried for acts he committed before the law was passed.
“Is material support a war crime,” is the central legal issue remaining, Mr. Berrigan said.
Charles Stimson, a former deputy assistant secretary of defense for detainee affairs, said the verdict was fair. “This judge provided this defendant a fair trial, despite the few troublesome rules in the Military Commissions Act — such as the rule that allows the government to attempt to introduce statements adduced by coercion,” said Mr. Stimson, now a fellow at the Heritage Foundation.
Matthew Waxman, who preceded Mr. Stimson in the Pentagon detainee affairs job, said that “while this conviction is important,” many doubts remained about the commissions process.
“To be effective in combating terrorism, the trials need to be widely seen as legitimate. In terms of global perceptions, the government is starting with a big legitimacy deficit,” said Mr. Waxman, now a professor at Columbia Law School.
Mr. Hamdan was captured Nov. 24, 2001, at a checkpoint on the road to Kandahar by Afghan militiamen under the command of U.S. special forces, in a car the government said contained two surface to air missiles, although not their firing mechanisms.
Because only U.S.-led coalition forces had planes then in the Afghan skies, the government argued the missiles were evidence of conspiracy to shoot down military aircraft. Mr. Hamdan has denied knowing the missiles were in the car, which he said he had borrowed, but defense lawyers said that in any event, in a war zone it’s no crime to shoot at military targets fielded by one’s enemy.
The defense acknowledged Mr. Hamdan had frequent contact with Mr. bin Laden and his inner circle, and often was privy to their conversations, at least when he drove them around after major terrorist attacks. The chief prosecutor, Col. Lawrence Morris, said the government made no claim that Mr. Hamdan was a major force within the terrorist network.
Rather, the dispute centered on whether what Mr. Hamdan did constituted a war crime. Defense lawyers insisted he was an unsophisticated functionary who declined terrorist training for the steady and relatively safe job of driving Mr. bin Laden, even though it sometimes involved other duties, such as serving as an armed bodyguard at al Qaeda press events.
Prosecutors contended that Mr. Hamdan knew that al Qaeda was a terrorist organization. His continued work for Mr. bin Laden was itself material support and illustrated his agreement with the conspiracy.
The trial featured testimony from the U.S. soldiers present at Mr. Hamdan’s capture, including an intelligence operative who appeared under the code name Sergeant Major A. Several current and former Federal Bureau of Investigation agents who interrogated Mr. Hamdan testified, including Ali Soufan, who has been described as a top counterterrorism investigator. Mr. Soufan relayed how he led Mr. Hamdan to disclose details about the al Qaeda organization, but testified that he had no knowledge that the defendant had planned or participated in any terrorist act.
The prosecution’s case was highlighted by several audio-visual moments. Early on, prosecutors screened video of Mr. Hamdan’s initial Army interrogations after his capture, in which he sat handcuffed in a primitive hut and offered misleading answers regarding his activities in Afghanistan.
Later, the prosecution showed a 26-minute film about the Sept. 11 attacks it had a contractor produce for $20,000. While reminding viewers of the horrific attacks, it did not specifically implicate Mr. Hamdan, and defense lawyers unsuccessfully sought to bar showing of grisly portions, arguing they were prejudicial.
Prosecutors put on 14 witnesses, including two who testified under code names. The defense called eight witnesses, including two who testified in closed session because the subjects were said to be classified.
The trial unfolded under extraordinary secrecy. Because it was held at this remote offshore base, no members of the public could attend. The cost and difficulty of covering the proceedings left few correspondents on the base to witness the trial from start to finish. Officials say no recording has been made of the proceedings, and no transcript will be provided for months, at the earliest. Courtroom sketches had to be approved by a military censor, who often had the sketch artist blur facial details.
