The Hamdan War Crimes Trial: An Illusion of Justice

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.

Comments

[atp2007]

This was a verdict that satisfied the needs of the military. By finding him innocent on some charges the military gives the appearance of fairness and with the short sentence, he won't appeal back to the S.C. which has already ruled the military system illegit. Case over, military looks good and can keep going on with hearings for now, he stays in jail forever as an enemy combatant. anyway.

[Hoelder]

Do they know the car he drove? Well maybe Toyota. Then Toyota provided material support to terrorism. It is really amazing that we call this technique of circular references justice. You do not need to know what is actually a crime. Blame the foot soldiers! They still do not have Bin Laden, never will. It is to hard to make a case and have a trial over months. Which makes this verdict a appendix to a show trial in order to mask it with unprecedented swiftness. I think the international court in The Hague would have dropped the case. The Hague is the right place for international crimes. Of course, then they might put out warrants on some leading Americans and CIA employees. No wonder the US did not join the treaty. For the meantime the trial was as important as a shoe with a hole. Even the exonerated will remain in prison on that tropical paradise surrounded by by thousands of armed men.

[rjmiller]

Someone please explain how someone can be detained as an enemy combatant but convicted of terrorism? If they are a combatant, than any act of violence against enemy soldiers or civilians should logically be considered warfare. Otherwise this trial is creating a precedent that all citizens involved in the military-industrial system as well as all US military personnel involved in the war in Iraq could be charged with the same crimes.

There must be a distinction made between terrorists and enemy combatants. There truly is a difference between terrorism and guerilla warfare, and that must be reflected in our policy if any kind of justice is to be seen.

[LeftRight]

No, the term enemy combatants needs to be removed from the world. They are either guerrilla's or they are military. In the first case, they are civilians, and need to be treated as such (given a reasonably fast trial, juries, lawyers, etc.....) and in the second case they are prisoners of war, and need to be treated as such (under the Geneva Conventions).

[JTyroler]

In Bush's America, apparently you can be arrested and held without trial or legal counsel because of who you worked for. If he was making $200/month in Afghanistan, he had a pretty good paying job.

[mimsnpips]

Someone chauffering a mob boss can claim they were hungry and could not find work but still they are guilty. I'm sure the job would pay well. He should have been prosecuted in criminal court. Of course he would have been found not guilty because most if not all of the evidence would have been inadmissible.

[THEhillbilly]

"Hamdan was convicted for material support for terrorism and could spend the rest of his life in prison. "

Fine. Was this guy too dumb to know the risks when he signed up for his part in the savages' plans?

"Hamdan could thus very well have been prosecuted in federal court but the government instead decided to make such offenses war crimes."

The government determined that such offenses constitute war crimes.

If a herd of American nutcases were to do what those savages did on 9/11/2001, the U.S. government would treat them as harshly as it treats these people. Yes, that would include anyone with any minute role in the crime. Still, it's painful to even imagine how Saudi Arabia, Iran, Yemen, etc. would treat them. The counterpart to Hamden would star in his very own stoning or beheading video.

"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."

It isn't remarkable, and it sure as hell doesn't change anything. Pure boilerplate.

[Precisionist]

"signed up for his part in the savages' plans"

Precisely what was his part that you are so offended about?

what's that... silence... thought so.

ever had to look for a job when your belly was empty and no education, no skills and no soup kitchens to be found hillbilly? didn't think so either.

quick to condemn others, but haven't walked a minute in their shoes. what a pathetic hypocrite!!!

So you have determined that the perpetrators of 9/11 were "savages". Of course you must know something very few other people know thus far (besides the perpetrators). While there has been a commission on 9/11, there has been no official independent investigation into the crimes of 9/11 as a criminal enterprise.

"If a herd of American nutcases were to do what those savages did on 9/11/2001, the U.S. government would treat them as harshly as it treats these people"

Unfortunately, you have no way of knowing that. While there is considerable speculation about Al Qaeda's role in 9/11, there is wide difference of opinion as to who else might have been accomplices to this horrific event.. e.g. destruction of Building 7. A true independent criminal investigation might actually provide some real facts.

Don't let facts get in the way of your smug life hillbilly.

[johnjmccarthy]

Perzactly, take the time to digest and compare....
http://johnmccarthy90066.tripod.com/id472.html and related articles in the left column.

[mimsnpips]

"Considerable speculation"? I have checked out some of these conspiracy theory sites. They pose questions. They don't provide a motive. BinLaden had a motive: his fatwah, his religious hatred against America. Though not putting it past the current administration I don't see a believable motive in the conspiracy theories.

[moreupnorth]

Could you provide me with proof that, "...the U.S. government would treat them as harshly as it treats these people." in the case of Timothy MCVeigh and Terry Nichols. Seems to me they were arrested by law enforcement and put on trial in the US court system and then one was put to death for his crimes while the other got life in prison. All this without being designated an enemy combatant, tortured for information, held at Guantanamo Bay and most of all he was an AMERICAN citizen.

When are people going to wake up from your legally prescribed drug induced coma. Law enforcement works against terrorists and you have plenty of proof. The first World Trade centre attacks in 1993 were handled by law enforcement and someone was arrested and convicted using a law enforcement approach. Or have you all forgotten the first two terrosrist attack on American soil?

Just remember that the first terrorist attack on US soil was perpetrated by TWO US CITIZENS in Oklahoma.

[LeftRight]

Actually, that was not the first. In 1993 the World Trade Center was bombed by Al quada. And technically, in 1984 (85??) the US embassy in Beirut was destroyed. There are MANY times that terrorism has hit the US. It's just that the one that most people THINK of was 9/11.

[MysticInd]

Excellent piece. Thank you.
What more could they do.... We need another person with a conscience to come forward with iron-clad information of these travesties.... please someone...
How are we to get these outlaws in the WH?

[Garioch]

This is no surprise given the bizarre and Byzantine nature of the application of the law in the U.S. over the years. In fact it's not surprise given the Byzantine nature of the application of the law in most locations over the years.
It does however give everyone an extra giggle when the nation imposing these show trials and insane procedures claims to be the 'Land of the free and home of the brave'.
Is there any chance of the U.S. rescinding the use of that guff form now on?

[doug108]

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.



Better clean up those web sites, dissenters. And, watch those speeches. Most of you aren't Muslim, so fatwas wouldn't apply.

[syllepsis]

Of course all this is against the Constitution- or rather would be if we still had one.

What we have is a lawless regime in Washington.

The kangaroo courts in Guantanomo are at least deserving of their name.

The U.S. Government is not.

[Marlyn]

so sad

[LeonBNJ]

To most Americans, they don't want these alleged terrorists to get US Constitutional or international standards of justice, much like they looked at the Japanese (and to a lesser extent Germans) during WWII. In that same view, they condone the use of torture of suspects, they don't care about the long-term implications of that. Until that view changes, it will impossible to really deal with terror.

[Marlyn]

"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."

The Mouse that Roared.

[legalgirl]

The Supreme Court will find this judgment, and the law underlying it, just as unconstitutional as that first piece of crap. It is against the U.S. Constitution to convict ex post facto, just as the author stated. But a case must be brought to bar in order for it to be adjudicated. This ruling will be appealed to the Supreme Court and the Military Commissions Act overturned--once we're out of Alice in Wonderland, of course.

[mgloraine]

Americans had better look closely at the Hamdan trial, because it is the model for ALL judicial action in the Cheney-Bush corporate police state. Our own trials will be patterned after this one: we will be accused of terrorism-related crimes and convicted with secret "evidence" which no one is allowed to see, whereupon our property will be seized and we will be shipped off to the Halliburton concentration camps (where the Cheney-Bush gang gets paid big government contractor bucks for running the prisons and keeping them full).

Retroactive immunity for corporate "campaign contributers", and retroactive guilt for the peasants. A mere accusation by a "government witness" will be used to hold US citizens indefinitely as "enemy combatants". That's life in the Constitution-less Decidership!

[steamboat]

I have no sympathy for this man. All I have to do is remember the numbers 3000 and 9/11. And also, fact is, this guy is NOT an American citizen. So the constitution doesn't pertain to him. Also, remember people, these folks behead people for the crime of reading a Bible. So getting life is actually too good for him.

[iRob08]

Nobody asked for sympathy, just common sense. He's still a human being who deserves basic human rights. Basic respect for human rights is our best national security. I don't recall anyone ever charging Hamdan with beheading or killing anyone. He was just a driver,just like Hitler's driver, who was never charged with anything.

[democritus]

I don't have any particular sympathy for this peasant with a fourth-grade education. But I know the entire Guantanamo affair, characterized as it is by official torture will be a black mark on the record of the United States forever. If you really care about this country you will work for the restoration of constitutional government.

[MinuteMan]

So you're saying that our ends justify our means?

The rights we accord people accused of a crime are not given because we like criminals but because we believe that people are innocent until proved guilty. The prohibition against unreasonable search and seizure is not there to give crooks a sporting chance; it's there to protect the rest of us from abuse of power by all levels of government.

[Precisionist]

"these folks" !!!!!

How bigoted can you be? I am ashamed that you might be a fellow American citizen with such bigoted views of humanity. This guy has been proven to have done nothing. What is it exactly that this man did that has any connection to "9/11 and 3000" ?

Please educate yourself with facts instead of emotional outbursts before posting on this board.

Just asking...should you be incarcerated for life if you happen to be of the same faith as Tomothy McVeigh, but did nothing else other than drive people around in a car who happened to be of the same faith as Timothy McVeigh? What about a cabbie who happened to give McVeigh a ride?

Did you bother to consider that perhaps this man had no choice other than to drive Bin Laden around. Let me paint this scenario...

Mr. Hamdan "Mr. Bin Laden, I am sorry I cannot drive you anymore unless you recognize the error of your ways and atone for all your sins on this stack of Holy Bibles".

... pretty plausible, huh?

It is people like you who give all Americans a bad name.

[doug108]

The Constitution sets out how this government is supposed to conduct business. It's not for United States citizens. It's for the US government. The Bill of Rights isn't a bill of rights for US citizens. It's just the Bill of Rights.

According to your reasoning, no non-American citizen arrested in this country is entitled to a trial by a jury of his peers, or protected against self incrimination, or has the right to counsel, or any 4th Amendment rights. It's obvious nonsense.