After 7 years, the Bush administration got its first war crimes conviction but not of anyone who plotted the 9/11 attacks, but that of Osama bin Laden's driver. Yemeni national Salim Ahmed Hamdan's crime was to chauffeur bin Laden in Afghanistan, which the government argued allowed bin Laden to plot attacks against the United States. Hamdan was convicted for material support for terrorism and could spend the rest of his life in prison. In fact, whatever sentence a court may determine, the Bush administration claims that it has the authority to hold him indefinitely as an "enemy combatant" until the cessation of hostilities in the so-called "war on terror."
Hamdan, who has a fourth-grade education and was earning $200 a month as one of Osama bin Laden's drivers, has been detained for almost seven years now. It was Hamdan's case in 2006 that led the Supreme Court to rule that President Bush lacked the authority to constitute military tribunals, but Congress subsequently enacted the Military Commissions Act (MCA) to re-constitute those tribunals, rendering Hamdan's victory worthless to him.
I observed Hamdan's trial in Guantánamo Bay, Cuba for Human Rights First. At trial, a parade of government criminal investigators testified that Hamdan was not involved in any terrorist attacks, such as the USS Cole bombing, the Kenya embassy bombings, and or even 9/11. But Hamdan was charged with conspiracy and providing material support to a terrorist organization. The six-member jury, however, convicted him of material support of terrorism. Material support and conspiracy are prosecutable under federal criminal law and many persons have been prosecuted in federal courts under such crimes post 9/11. Hamdan could thus very well have been prosecuted in federal court but the government instead decided to make such offenses war crimes. This in legal terms is ex post facto application of the law-making something a crime when it was not a crime at the time it was committed -- and is prohibited by the U.S. Constitution.
To make the case that military commissions are prosecuting war crimes, the government has argued, as it did in the case of Hamdan, that the United States and al Qaeda have been at war since the early 1990s. This is remarkable since most Americans never heard of al Qaeda until 2000. But the government's view is that al Qaeda in its speeches, websites, and fatwas declaring war on the United States were sufficient to trigger the laws of war. At Hamdan's trial, the government debuted "The al Qaeda Plan"-a made to order $20,000 movie comprised of al Qaeda propaganda videos found on the Internet to prove, among other things, the government's analysis of when the armed conflict with al Qaeda began. This interpretation of when an armed conflict begins or ends is a dangerous stretch, as it would allow any group to say that it is at "war," and would thus trigger a state of armed conflict.
Hostile acts, including terrorist attacks that take place in a non-international armed conflict (i.e., a conflict not involving two or more nations), do not automatically trigger the application of the laws of war. But the Bush administration has changed the rhetoric in order to prosecute terrorism from a military rather than criminal approach, thereby giving the government the flexibility to use deadly force and detention powers typically not available in a law enforcement framework.
At the Hamdan trial we learned that the government gave the "The al Qaeda Plan" its name, in order to draw a comparison to "The Nazi Plan," a documentary movie produced sixty years ago by the U.S.-led prosecution for the post-World War II Nuremberg trials. "The Nazi Plan" was based on German footage that showed the defendants charged in those prosecutions meeting with Hitler. Hitler's driver, incidentally, was not prosecuted at Nuremburg.
Government witnesses testified that Hamdan is a marginal figure, a cooperating witness, who provided useful information to the government. He identified al Qaeda members from photographs and was willing to testify against a senior al Qaeda figure. Every one of the statements Hamdan made to interrogators in Guantánamo is now being used to convict him. Government investigators in Guantánamo did not advise Hamdan of his right to counsel because, as they testified in court, it was the policy of the United States government not to give Miranda warnings to Guantanamo detainees. Moreover, we learned that the interrogations were for purpose of intelligence gathering and not criminal prosecution. Notably, many of these same interrogators routinely issued rights warnings in Yemen after the 2000 bombing of the USS Cole and in Kenya after the 1998 embassy bombings, except in Guantanamo.
Issues like Miranda and self-incrimination are essential for a trial to be considered fair. An individual has the right to know that he is the subject of a criminal investigation, when being questioned by a government agent. We are not talking about battlefield interrogations in Afghanistan, but interrogations at a U.S. base where Hamdan was given promises of a phone call to his wife if he cooperated.
The impact of the absence of any Miranda-type warnings became clear in Hamdan's case. We heard testimony that even though Hamdan had been previously been interrogated 40 times, a Pentagon counterintelligence agent nevertheless flew to Guantánamo with a military commissions' prosecutor to question Hamdan. At trial, we learned that this visit was not about getting additional intelligence. Instead, the witness, who described himself as an excellent trial witness, met with Hamdan without advising him about legal counsel to find any gaps in previous interrogations so as to make an airtight prosecution case against Hamdan.
There are two faces of Guantánamo. The one that the military commissions proceedings are now highlighting features "clean teams," comprised of professional FBI agents who have testified about Hamdan's admissions obtained using rapport-building techniques. This face of Guantanamo will be showcased in the upcoming trials, especially those of the September 11 defendants, in which torture will be a central issue. The aim is clearly to deflect charges that the United States has used coercive means to gather evidence. The military commission rules, unlike those in federal civilian courts, and the court-martial system allow for evidence obtained under coercive means to be admitted provided that the evidence is reliable and is in the interest of justice.
But before the clean teams were deployed, there was the other face of Guantánamo, that of interrogations conducted by military and intelligence officials using techniques approved by Secretary of Defense Donald Rumsfeld such as sleep deprivation, stress positions, exposure to extreme temperatures, and sexual humiliation. But the public won't learn about coercive interrogation techniques at trial because that is considered top secret. In fact, in response to allegations that Hamdan had been subjected to sleep deprivation prior to being interrogated, the judge issued a ruling that was largely redacted. We saw pages and pages of black ink that presumably referred to sleep deprivation. Any hint of misconduct whether proven or not is automatically classified! Secrecy in effect is used to shield abuse.
In the Hamdan case, the government requested a protective order that forbids mention of the CIA. The impact of this is so broad that it extends to public documents. At trial, Hamdan's lawyer held up the 9/11 Commission Report to question a government witness, but he was prevented from reading a sentence from the report by the government on classification grounds. This, despite the fact that the report is not only a public document but also a New York Times bestseller, only underscores the arbitrary nature of the level of secrecy that affects the military commission proceedings. When two defense witnesses, one of whom is with Special Forces, were about to testify about events in Afghanistan, the NGO observers and the media were cleared out of the courtroom because we did not have a security clearance. So, we never heard how Hamdan was treated by intelligence officers or cooperated with U.S. forces in Afghanistan.
If any benefit is it come out of the Hamdan case, it will be, if nothing else an instructive example of how to defend a client without full discovery. Despite discovery orders, the government refused to provide the requested documents. Twelve hours before trial began, and even during trial, the government suddenly produced some requested documents. One of those documents includes a female interrogator's account of her sexual humiliation of Hamdan, while other documents describe Hamdan being woken repeatedly in the night and moved between cells 0- including the night before his interview with an interrogator.
Hamdan has been in custody since November 2001 but the government failed to turn over to the defense requested documents. In fact, we learned that there are several "black holes" in Hamdan's detention records. An entire month of Hamdan's detention when he was interrogated by intelligence agencies in Afghanistan is unavailable. This reflects a deliberate compartmentalization of evidence where documents necessary for conviction are available, but records regarding conditions of confinement and abusive interrogations are not.
The government will undoubtedly tout the Hamdan trial as a success for the military commissions system. But the outcome for any trial in this flawed system is pre-determined. The military commissions appear to have the trappings of a fair and open trial but there are not. It was the government and not an independent court that decided Hamdan's fate.