A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict

6.8.08

Salim HamdanAt Guantánamo, a military jury’s verdict in the first US war crimes trial since the Nuremberg Trials of Nazi leaders after the Second World War — that Yemeni prisoner Salim Hamdan is guilty of providing material support for terrorism, but not guilty of the more serious charge of conspiracy — followed two eventful weeks of often extraordinary insights into the conduct of the United States’ “War on Terror.” And yet, as Jonathan Mahler wrote in the New York Times over the weekend, the lofty ideals of the Nuremberg Trials, which opened with Chief Prosecutor Robert Jackson declaring, “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason,” were not in evidence during Hamdan’s trial, and, it can be argued, have not been manifested in the verdict.

Vindicating the Military Commissions: a Herculean task

Instead, the limited number of outside observers attending Hamdan’s trial by Military Commission witnessed Judge Keith Allred — a principled man in an unenviable position — struggling to turn a novel legal system unconnected to the laws on which the United States were founded over 200 years ago into something resembling a fair trial that would be respected in legal circles both in the United States and the wider world. The events of the last two weeks revealed that this was, in most respects, a Herculean task.

Conceived in the wake of the 9/11 attacks by Vice President Dick Cheney and his chief counsel David Addington, today’s Commissions are a modified version of the initial system, which was ruled illegal and unconstitutional by the Supreme Court in June 2006, but the Commissions’ many critics remained unconvinced that they can provide an adequate substitute for either US law, as practiced on the mainland, or the military’s own well-established judicial processes. Little, if anything that emerged in the last fortnight helped to assuage their doubts.

A litany of dubious practices

Instead of vindicating Cheney and Addington’s belief that a new legal system was required to try “terror suspects,” Hamdan’s trial featured a litany of dubious practices masquerading as justice, including the disgraceful use of propaganda, misplaced prosecutorial zeal, the shameful employment of hearsay as evidence, abuse of the Fifth Amendment protection against self-incrimination, and woefully blurred distinctions between valid testimony and coerced testimony. The proceedings also provided observers with piercing insights into the various interrogation techniques used in the “War on Terror,” which, I believe, served only to confirm the supremacy of the agencies who favor kindness and psychological maneuvering over those who favor coercion and brutality.

Towards the end of the proceedings, two further episodes served to underline the Commissions’ failings. In the first, defense testimony from government employees was delivered to a closed court, which both undermined the essential transparency of the process and tilted perceptions of the trial in favor of the prosecution, whose entire case had been conducted in the open. In the second, senior al-Qaeda operative Khalid Sheikh Mohammed, though not present in person, delivered a statement dismissing Hamdan as nothing more than a “primitive” man, unequipped to be involved in the planning or execution of terrorist attacks, in which he also managed to further undermine the trial with some acute insights into what he described as fundamental failures of the US intelligence agencies.

Why does no one care?

Despite the supposed importance of the case, Jonathan Mahler noted in the Times that the proceedings “hardly have the feel of history in the making. They haven’t merited much discussion in the presidential campaign; nor are we [as] a nation riveted by the trial of the first defendant … Instead of a landmark case, one that serves as a resonant reminder of the gulf separating us from our enemies, we have detachment and ambiguity — not just about the extent of Hamdan’s guilt but also about the wisdom of the entire tribunal process as well as many other aspects of the prosecution of the war on terror.”

These were valid points, and although the detachment Mahler referred to can partly be explained by a general hollowing-out of political awareness, in which a prurient obsession with the peccadilloes of celebrities has taken root instead, part of the detachment — and the ambiguity — can be explained by the dissonance between the supposed importance of the trial and the reality of the figure at its heart.

Although Salim Hamdan was a driver for Osama bin Laden, he and his defense team have always maintained that the Yemeni father-of-two, who has only a fourth-grade education, was nothing more than a hired worker (one of seven drivers in total), was not privy to the inner secrets of al-Qaeda and had no knowledge of, or involvement in the attacks — on the US embassies in Africa in 1998, on the USS Cole in 2000, and on the US mainland in 2001 — that are the purported justification for the creation of the entire Military Commission system.

Even the prosecution did not attempt to insist that he was a major player. “We never put a rank on him,” Col. Lawrence Morris, the Commissions’ chief prosecutor, explained to reporters. “We never suggested he was in the top 17 or the top any-teen of al-Qaeda. I don’t want … to have anybody have us appear to be asserting that he’s more responsible than he is or that he’s higher-ranking than he is.” Col. Morris’ opinions were supported by the testimony of various agents over the course of the two-week hearing. FBI agent Craig Donnachie, for example, explained that Hamdan told him that he “had no interest in fighting after completing his time” at a training camp in Afghanistan, and when defense lawyers asked Donnachie if Hamdan had committed “to engage in terrorist acts,” the agent replied, “He did not.”

Salim Hamdan at his trial by Military Commission, July 24, 2008

In this courtroom sketch by Janet Hamlin, Salim Hamdan sits and waits during the testimony of FBI agent Craig Donnachie on July 24.

As a landmark case, therefore, Hamdan’s trial lacked the punch required to galvanize the nation, and was, at some level (as I have suggested before), equivalent to trying Adolf Hitler’s driver in the Nuremberg Trials in the absence of the Führer himself. And the entire set-up looks even more murky when the reasons for putting Hamdan forward are examined in any detail.

Testing the system and concealing torture

While the Commissions’ most significant defendants — Khalid Sheikh Mohammed (KSM) and four other prisoners accused of direct involvement in the 9/11 attacks — waited in the wings, it was clear that Hamdan was put forward first for two very specific reasons, neither of which showed the process in a good light.

The first was that he was being used as a guinea pig, to test whether the system actually worked, and the second was that he was presumed to be relatively “clean”; in other words, that he had not been subjected to the torture inflicted on the “high-value detainees,” including KSM and his alleged co-conspirators. The administration not only denies that it has been involved in torture, but also denies that waterboarding (a process of controlled drowning, which the Spanish Inquisition had the honesty to call “Tortura del Agua,” and which KSM and others were subjected to, as admitted by CIA director Gen. Michael Hayden), is actually torture. When it came to putting these men on trial, however, the authorities’ refusal to start the proceedings with KSM and his co-accused served only to confirm that legally, if not morally, they were aware that they were on shaky ground. As a result, they resembled nothing more than cowardly abusers striving hard to hide their guilty secrets.

As it happened, neither policy was entirely successful in Hamdan’s case. Observers easily rumbled the fact that, along with Hamdan, the entire system was on trial, as William Glaberson of the New York Times demonstrated in an article on July 29. “Mr. Hamdan’s trial is, in a sense, two trials,” Glaberson wrote. “Mr. Hamdan is being tried on accusations of conspiracy and material support of terrorism. And the Bush administration’s military commission system itself is on trial.”

Nor did the second ploy proceed smoothly. As I have noted before, only one of the 20 prisoners so far put forward for trial by Military Commission, an Afghan called Mohammed Hashim, resisted mentioning that he was subjected to either torture or coercion, but he appears to be nothing more than a deluded fantasist who should never be on trial at all.

The blurred distinctions between voluntary and coerced testimony

In Hamdan’s case, allegations of severe mistreatment dogged his pre-trial proceedings. His defense counsel hired an expert to examine his mental state, who concluded that prolonged isolation had led to a situation whereby he “met diagnostic criteria for Post Traumatic Stress Disorder and Major Depression,” including “nightmares, intrusive thoughts, memories and images, amnesia for details of traumatic events, lack of future orientation, anxiety, irritability, insomnia, poor concentration and memory, exaggerated startle responses, and hypervigilance.” In recent weeks it was revealed that he was subjected to sexual humiliation during interrogations, and a systematic policy of sleep deprivation, in which he was repeatedly moved from cell to cell and prevented from sleeping for a period of 50 days.

Furthermore, as the trial began, Judge Allred was required to interpret the horribly blurred distinctions between voluntary and coerced testimony that were written into the Military Commissions Act (the legislation that revived the Commissions after the Supreme Court struck them down in June 2006). This permits coerced evidence and hearsay, if the judge considers them to be “reliable” and “probative,” and Judge Allred confirmed that Hamdan had indeed been subjected to legally dubious treatment by ruling out the use of any testimony obtained when he was held in Afghanistan after his capture, both at the US-run prison at Bagram, and, as had never previously been disclosed, at an Afghan prison in the Panjshir Valley, north of Kabul. The Panjshir prison was one of several prisons in which, as my research for The Guantánamo Files revealed, numerous “ghost prisoners” who ended up in Bagram were subjected to what one of the prison’s captives, a Libyan who escaped from Bagram in July 2005, later described as “hard torture.”

In response to Hamdan’s complaints that, at Bagram, he was “kept in isolation 24 hours a day with his hands and feet restrained, and armed soldiers prompted him to talk by kneeing him in the back,” and his additional complaints that, in the Panjshir prison, his captors “repeatedly tied him up, put a bag over his head and knocked him to the ground,” Judge Allred ruled out the use of statements obtained from the interrogations because of the “highly coercive environments and conditions under which they were made.”

This, obviously, was not a good start for the prosecution, but while it served to underline how vague the parameters are for what is acceptable evidence (making the judge the sole, unchallengeable arbiter of what constitutes coercion), Judge Allred added that he foresaw no problem with other statements that Hamdan had made while he was held in other locations in Afghanistan and throughout his imprisonment at Guantánamo. Even so, the prosecution complained. “We need to evaluate … to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out for future cases,” Col. Morris explained.

The prosecutors in Salim Hamdan's Military Commission

Hamdan’s prosecutors. From left: Maj. Omar Ashmawy, John Murphy, Cmdr. Timothy Stone and Clayton Trivett Jr. Photo © Fred R. Conrad/The New York Times.

Shredding the Fifth Amendment

In the meantime, Hamdan’s defense team took the offensive. Michael Berrigan, the deputy chief defense counsel, described it as “a very significant ruling,” because the prosecutions “are built to make full advantage of statements obtained from detainees,” and his team immediately asked Judge Allred to throw out all of Hamdan’s interrogations, arguing that in Guantánamo he had incriminated himself under the effects of the abuse mentioned above, including the prolonged sleep deprivation and solitary confinement to which he had been subjected, and that any statements he had made were an infringement of his Fifth Amendment rights.

The appeal was denied by Judge Allred, who declared that constitutional protections against self-incrimination do not apply to “enemy combatants,” but it led the case into another contentious area, in which the significance of the Fifth Amendment played a critical role, Guantánamo’s purpose as an interrogation camp was explicitly revealed (in contravention of the Geneva Conventions, which prohibit the interrogation of prisoners seized in wartime, whether coercively or not), and, arguably, the administration was obliged to reveal far more than it would have wished about the nature of its interrogation of suspects in the “War on Terror.”

This part of the proceedings kicked off with an explosive revelation by the former FBI interrogator and “al-Qaeda expert” Ali Soufan, who explained on the trial’s second day that Guantánamo, as the Associated Press described it, “is the only place in the world where he has not informed suspects of a right against self-incrimination.” “The way it was explained to us,” Soufan said, “is Guantánamo Bay is an intelligence collection point.”

This was enormously significant, as the prison’s true — and illegal — purpose was supposed, officially, to remain hidden behind Donald Rumsfeld’s jaded rhetoric: that the prison exists because the US is keeping “committed terrorists … off the street and out of the airlines and out of nuclear power plants and out of ports across this country and across other countries.” Apologists for the “War on Terror” argue that the flight from domestic and international law is necessary to fight what they apparently regard as the greatest threat the world has ever known (hence the rather inflated Nuremberg analogies), but in reality the administration’s behavior has not only undermined the reputation of the United States abroad; it has also, as Hamdan’s self-incrimination specifically showed, led to a surreal situation in which those who cooperate with their interrogators are punished for their cooperation.

As the Los Angeles Times explained, “A parade of intelligence witnesses” described Hamdan as “cooperative, cordial and a source of reliable information about the terrorist hierarchy,” who “drew maps to al-Qaeda training camps and compounds for his captors” and “guided FBI and military intelligence agents to bin Laden’s private residences and guest houses and identified photos of terrorist kingpins still at large,” while in custody in Afghanistan. At Guantánamo, moreover, he reportedly provided “vital information” about “key perpetrators” of the terrorist attacks in 1998, 2000 and 2001. Ammar Y. Barghouty, an FBI agent, explained that Hamdan’s identification of the Saudi “high-value detainee” Abdul Rahim al-Nashiri, who is accused of directing the attack on the USS Cole, together with “his willingness to testify against him,” provided the government with “a solid basis to prosecute the Saudi.”

Revelations about interrogation techniques

As these revelations were rolled out, Hamdan’s treatment — and by extension the treatment of “enemy combatants” in general — inadvertently came under close scrutiny. Of particular interest was the testimony of FBI special agent George Crouch, who interrogated Hamdan at Guantánamo for 13 days in June 2002. Favoring the old-school approach to interrogation that focused on rapport-building rather than brute force, Crouch explained how he “built a trusting relationship with Hamdan during the marathon interrogation, bringing him special snacks and working to ease his ‘concerns.’”

“Mr. Hamdan commented that he liked McDonald’s fries and we brought fries in,” Crouch said, adding that he “even appreciated that McDonald’s fries are not good cold.” Complaining, as Reuters put it, that Hamdan “grew upset and uncooperative when he was put in solitary confinement amid a series of interrogations, prompting a heated complaint by Crouch to military guards,” the FBI agent then explained that, on another occasion, “Hamdan’s mood lifted when he was allowed to call and tell his wife that he was alive.” “Mr. Hamdan cried quite a bit,” Crouch said. “He was very grateful for the opportunity to speak to his wife. A burden had been lifted from him. At least his wife knew he was alive.”

In contrast to Crouch’s approach to interrogations, other agencies favored harsher techniques, although no evidence was provided that they were more effective, and, disturbingly, the activities of the CIA were declared off-limits in the trial, just as the CIA’s interrogations in Afghanistan were. Although Crouch successfully prevented Hamdan from being kept in solitary confinement between his visits, which, he said, made Hamdan “believe he was being punished for something,” the Los Angeles Times reported that he was “unaware … that during the night Hamdan was also brought to interrogators of another US agency,” whose identity was not revealed, under what was described, with some accuracy, as the court’s “secrecy practices.”

Like other witnesses, Crouch admitted that Hamdan was not protected by the Fifth Amendment, although he explained that he was not happy with the situation. “I would have read him his rights,” he said. He insisted, however, that although Hamdan played only a small supporting role in al-Qaeda, it was still significant. “Without people like Mr. Hamdan, bin Laden would enjoy no support, he would not enjoy protection and he probably would not have been able to elude capture up to this point,” he said. Even so, he reserved one last gesture of kindness towards Hamdan, admitting, “I don’t know if I ever thanked him.”

What was largely undiscussed, however, was the impact of Hamdan’s self-incrimination. Harry Schneider, one of Hamdan’s lawyers, asked Crouch during cross-examination, “Did anyone ever say, ‘You’ve got to understand, somebody can use this against you?’” but Crouch said he “did not remember,” and it was left to the defense to point out to both the jury and the agents the absurd situation whereby, in contrast to the case that a cooperative Hamdan had built up against himself, “the head of bin Laden’s bodyguards — Hamdan’s boss — and an al-Qaeda errand boy arrested along with Hamdan,” who had “refused to cooperate with US interrogators during their time at Guantánamo … were eventually released without being charged.” As Ben Wizer, a staff attorney with the American Civil Liberties Union, explained, “It’s perverse that the only person who agreed to cooperate is being hung with his own words, while those who stayed silent are home and free.”

The defense team in Salim Hamdan's Military Commission

Hamdan’s defense team. From left: Joseph McMillan, Lt. Cmdr. Brian Mizer, Andrea Prasow, Harry Schneider Jr. and Charles Swift. Photo © Fred R. Conrad/The New York Times.

In addition, what no one mentioned at all was a disturbing corollary: that, by prosecuting a witness who has been so cooperative, the administration has, very possibly, fatally undermined the ability of its intelligence agencies to secure the services of former insiders in terrorist organizations who are prepared to reveal all they know in exchange for protection. This might appear to be a rather obscure tangent to some readers, but those who understand the working of the intelligence agencies will be aware of the crucial importance of informers.

Jack Cloonan, a former FBI special agent, who worked closely with former al-Qaeda insider Jamal al-Fadi in the years before 9/11 — and, like his fellow agent Dan Coleman, appreciated that brutality (“all that alpha-male shit,” in Coleman’s words) was useless in terms of building a sustained and useful relationship with prisoners in possession of genuinely significant intelligence — explained to Jane Mayer of the New Yorker in 2006 that “the possibility that other people with useful information about al-Qaeda will consider becoming informants” was being severely damaged by the administration’s post-9/11 policies. “You think all of this stuff about torture is going to make people want to come to us?” he asked. “That’s why I get upset when I hear people talking about stress positions, loud music, and dogs.”

Shameless propaganda

During the first week’s proceedings, as Julia Hall of Human Rights Watch reported for Salon, the prosecution showed two videos taken shortly after Hamdan’s capture in Afghanistan, which were “harrowing both for what they depict and for the fact that they were admitted into evidence at all.” Hall described how they “show Hamdan slumped on the floor, hooded and shackled, as he is badgered by his Arabic-speaking military interrogator in a dark room with one dim light bulb overhead. An armed soldier is behind Hamdan, the interrogator in front.” She added, “There is a sickening sense in watching that Hamdan — visibly scared — is searching for the right words to appease the interrogator, trying out ideas as they occur to him in an attempt to avoid more abuse.”

While Hall noted that Judge Allred had overruled the defense team’s objection to the tapes being shown, deciding, as he was once more required to ascertain what constituted coercion, that they were “in the interests of justice,” she also pointed out that the DoD was not prepared to release the tapes to the general public, and cited a Pentagon source who had stated that they were being withheld out of an “abundance of caution.” “Perhaps,” she mused, “the DoD fears that the American public will know a coercive interrogation when it sees one.”

At the start of the trial’s second week, as if to compensate for the mixed messages in the “capture tapes,” the prosecution returned with a slice of pure propaganda. “The Al-Qaeda Plan,” modeled on “The Nazi Plan,” produced for the Nuremberg Trials, was written, produced and narrated by Evan F. Kohlmann, an “international terrorism consultant” who was paid $20,000 to produce the film, and another $25,000 to appear as an “expert witness.”

The film, as the Los Angeles Times described it, is “a graphic 90-minute film chronicling the history of al- Qaeda,” which includes “footage of mangled corpses in the rubble of the 1998 US Embassy bombing in Kenya,” and its showing caused uproar in the courtroom. Although Judge Allred told the jurors that it was being shown “to provide an understanding of al-Qaeda operations,” and that Hamdan was “not alleged to have been involved in any of these attacks,” Charles Swift, one of Hamdan’s lawyers, complained vociferously, describing the film as “extraordinarily prejudicial” and accusing the prosecution of “trying to terrorize the members” of the jury. While Col. Morris responded, bizarrely, by claiming, “It is prejudicial, which is why we show it,” and adding, “I think people think prejudicial is somehow wrong,” the showing of the film was clearly nothing more than a propaganda exercise, much like the irrelevant footage of Osama bin Laden that was shown last summer at the propaganda-fuelled trial of US “enemy combatant” Jose Padilla.

A tainted confession

The following day, demonstrating yet again that the Commission judges have, to some extent, been empowered to make the rules up as they go along, Judge Allred decided to penalize the prosecution, as they finished presenting evidence, by preventing them from using what was described as “the most complete summary of evidence against Hamdan,” compiled by Ali Soufan and Robert McFadden of the Naval Criminal Investigation Service (NCIS) in May 2003, as a penalty for the prosecution’s delay in handing over 1,200 pages of documents relating to Hamdan’s interrogations to the defense team. Despite repeated requests for the documents, the prosecution had waited until the evening before the trial began to release them, leaving the defense team little opportunity to search through the records for evidence of Hamdan’s abuse.

However, the day after — vacillating yet again — Judge Allred allowed the prosecution to present its evidence, but insisted that he would use a “higher standard” to evaluate the submission, adding that the prosecutors would have to provide “clear and convincing evidence” that Hamdan’s statements were not obtained through coercion. Whether the judge remained true to his word or not is a moot point. When McFadden took the stand, he declared that Hamdan had told him that he had sworn bayat (pledged an oath of loyalty) to bin Laden, even though no other interrogator had managed to secure such a confession.

In response, Hamdan himself took the stand to deny that he had said any such thing. As the Los Angeles Times described it, “He insisted that he had spoken only with Soufan during the more-than-nine-hour interview and that despite Soufan’s persistent questioning on the subject, he had never told him about swearing allegiance.” Hoping to capitalize on what appeared to be a key piece of evidence, lead prosecutor John Murphy then told the judge that allegations of coercion had “cast a black cloud over these agents and those who work with the detainees” and suggested that McFadden’s testimony would “dispel that taint,” which prompted an immediate riposte from Michael Berrigan, who called the day’s proceedings “a farce,” and said that the “black cloud’” was “the government’s own creation,” which it had manufactured through the use of coercion.

Silencing the defense

As the defense team was finally granted the opportunity to present its case, Brian Glyn Williams, a professor of Islamic history, attempted to explain Afghanistan’s history to the jury, focusing on the differences between what he described as “two largely separate al-Qaeda missions: supporting Islamic warriors and committing terrorist acts against enemy foreign states.” Echoing the words of FBI agent Craig Donnachie, Professor Williams said that Hamdan was recruited for a support role “because he lacked the will for carrying out attacks,” and, moreover, was incapable of assuming a role as an international terrorist. “I don’t see him being that quality of material,” he said.

After this intriguing start, most of the rest of the defense’s case took place behind closed doors, as the court heard testimony from Lt. Col. G. John Taylor and Col. L. Morgan Banks III, the senior psychologist in the military’s SERE program (Survival, Evasion, Resistance, Escape), which subjects soldiers to abuse to train them to resist interrogation by enemy agents (and which is widely regarded as the model for the brutality and humiliation to which “War on Terror” prisoners have been subjected). The defense team was, naturally, unimpressed by the secrecy. Lt. Cmdr Brian Mizer, Hamdan’s military lawyer, said, “It is not the defense that has requested this closed session, but it is necessary, according to the government, to protect the information.” He added, pointedly, “It is my hope that the American public will someday hear Mr. Hamdan’s defense.”

Quite what state secrets the two men were supposed to be protecting is, of course, unknown, but a defense statement revealed that they were called because they had been serving with US Special Forces when Hamdan arrived at Bagram on December 28, 2001, and it seems reasonable, therefore, to suggest that the court was closed because what was under discussion crossed the line of “coercion” that Judge Allred had been responsible for monitoring throughout the trial.

It was, however, yet another example of a tendency to secrecy that had marred much of the defense’s case. When Hamdan’s lawyers appealed to Judge Allred for Robert McFadden’s testimony to be excluded, citing references to Hamdan’s abuse at the time, almost all of the judge’s ruling (in McFadden’s favor) was blacked out, but the most ludicrous example of censorship occurred during the cross-examination of McFadden, when Harry Schneider Jr. wanted to ask the agent a question based on a book that he held up in the courtroom. After some discussions with the prosecution, Schneider admitted, “I’m told it’s classified, so I can’t ask you,” even though the book was the best-selling 9/11 Commission Report.

Deftly dissecting the problem with secret testimony, Lou Fisher, the author of a book about the 1942 military trial of eight alleged Nazi saboteurs (which is the basis for much of the administration’s concept of the Military Commissions), explained to the Washington Post, “No court, civilian or military, has credibility when it listens to secret evidence in a closed courtroom,” and Stacy Sullivan of Human Rights Watch, who was excluded from the courtroom during the secret testimony, declared, “The reason closed sessions are so troubling at Guantánamo is because the government has so frequently claimed things have had to be classified to cover up abuse and torture. In addition, trials of this magnitude should have a public record. If a significant amount of evidence and witness testimony is classified, it will be very hard to trust any verdict.”

The damaging testimony of Khalid Sheikh Mohammed

Despite these misgivings, the trial ended, as it had begun, with controversy. In a 16-page written submission, Khalid Sheikh Mohammed, who confessed during his administrative tribunal at Guantánamo last year that he was “responsible for the 9/11 operation, from A to Z,” delivered a defense of Hamdan that managed to be both patronizing to Hamdan himself and witheringly critical of the US administration’s pursuit of his prosecution.

Describing himself as “the executive director of 9/11,” KSM wrote, “He did not play any role. He was not a soldier, he was a driver. His nature was more primitive (Bedouin) person and far from civilization. He was not fit to plan or execute.” Elsewhere, he wrote, “He was a driver and auto mechanic … he was not at all a military man. He is fit to change trucks’ tires, change oil filters, wash and clean cars, and fasten cargo in pick up trucks.”

While this description corresponded with the defense team’s analysis of Hamdan’s role, it was unclear if the jury would be prepared to accept KSM’s opinions, especially as, elsewhere in his statement, he railed against the administration as a whole. “We are not gangs,” he wrote. “As the American Army (we) have drivers, cooks, crewmen and legal personnel. We also are human beings … we have interests in life. Our people have wives and children and schools … You can not understand terrorism and al-Qaeda from 9/11 operation.”

He added, in a section that addressed the question of how far culpability for al-Qaeda’s terrorist attacks could, realistically, extend beyond the core leadership, “One of the reasons for the success of the outside operations is the secrecy of the operations. So many of (bin Laden’s) inner circles have no knowledge of what he was planning and so many of al-Qaeda’s members and even the trainers at the military camps do not have any knowledge of the works of the outside cells. That includes the civilian employees.” Anyone who thinks that everyone involved in al-Qaeda was also involved in terror attacks, he added, “is a fool.”

The impossibility of escape

With that — and more muted testimony from Walid bin Attash, another “high-value detainee” who maintained that Hamdan “did not play any part in any planning” –the trial came to an end. All the parties summed up on Monday, but as the jury retired to consider its verdict the last of many “black clouds” to hang over the trial concerned Salim Hamdan’s fate, whether he was found to be innocent or guilty.

Over the weekend, Guantánamo’s new commander, Rear Adm. Dave Thomas, admitted that he had not yet worked out what would happen if Hamdan were found guilty. Under the Commissions’ rules, those convicted are required to be held separately from the rest of the prison’s population, raising the prospect that Hamdan would be held in complete isolation for the rest of his life. “Asked how Hamdan could be separated but not isolated,” as Reuters described it, Rear Adm. Thomas admitted, blithely, “It’s a great question. I’m not faced with it yet. We’ve thought that through and we have plans to accommodate, but I’ll cross that bridge when I come to it.”

Just as disturbing, however, was the prospect of what would happen if Hamdan was found to be innocent. As Donald Rumsfeld explained in March 2002, even if an “enemy combatant” is acquitted after a trial by Military Commission, “the United States would be irresponsible not to continue to detain them until the conflict is over.” What is particularly distressing about this, of course, is not just that the administration believes that the “War on Terror” may last for generations, but that it can so brazenly state that it can hold men forever, even if they are found innocent after a trial.

As Michael Berrigan explained, the mere possibility that the administration will hold men forever, even after their acquittal, reveals that the Commissions are nothing more than “show trials,” as their critics have long maintained. Speaking to the Associated Press, he said, “What’s the purpose here? Mr. Hamdan is going to be held until the government wants to release him. It really has no connection to the underlying reality.”

Or, he could have added, to any notions of justice.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively on AlterNet.

Also see the following articles on Salim Hamdan’s sentence, the jury’s response, and the media’s response. And see the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

29 Responses

  1. Andy Worthington says...

    Shortly after the verdict was announced, Stephen Abraham wrote to me:

    We should regard the prosecution of the case against Salim Hamdan as a shining moment in military jurisprudence and our own defining of this nation’s identity as an example to the world of the democratic principles that we have claimed to advance since the time of our founding. We can only trust that the next subjects in the undoubtedly long series of war crimes trials to be convened will include cooks, tailors, and cobblers without whose support terrorist leaders would be left unfed, unclothed, and unshod, and therefore rendered incapable of planning or executing their attacks.

    Let not another person attempt to compare this proceeding, borne and carried for so many years far from the light of day, to anything we understand to comport with our obligations respecting fundamental human liberties.

    With hope for the moment of a return from the path we have chosen.

    After reading my article, Stephen sent the following message:

    Very nice. Forgive my having focused on one particular comment perhaps a bit lost in the middle.

    “The way it was explained to us,” Soufan said, “is Guantánamo Bay is an intelligence collection point.” This was an enormously significant statement, as the prison’s true — and illegal — purpose is officially, as once described by Donald Rumsfeld, to keep “committed terrorists … off the street and out of the airlines and out of nuclear power plants and out of ports across this country and across other countries.”

    To my mind, this always was THE significant statement. G’tmo always was about intelligence collection. Ask yourself why certain people were sent there, rather than be kept in other more open, more transparent facilities. It was precisely because the administration blindly believed that it could operate such facilities far removed from reach of the other two branches of government, essentially beyond the reach of law and morality.

    I replied:

    And the significant statement leads into the use of the other prisons — sorry, detention facilities — in Afghanistan, in the CIA’s world wide tortureweb, and tangentially in Iraq, where intelligence collection, freed from the constraints of the Geneva Conventions, was also the purpose.

    And all for what? Torture “evidence” that is legally worthless, and that has led to who knows how many blood-stained wild goose chases, in which innocent men, women and children are also rounded up for “interrogation.” And so it goes, on and on …

    Obama really should be clear on this, now that anti-torture hero McCain has turned. Nothing less than a ban on torture and a return to the Geneva Conventions can begin to restore the possibility of justice.

    And Stephen replied:

    The answer is that we unequivocally repudiate torture and any right to use the fruits of torture in any proceeding. Add to that the position that there will be no immunity for anyone who engages in or authorizes the use of torture. It is not (to be very clear) as a result of such a position that torture will not be employed (after all, we just can’t imagine the limits to which human ingenuity can be pressed under “extreme” circumstances), but when people understand that they will be held personally (legally) accountable for their actions, they may decide that there are other means of collecting information that do not demand the abrogation of fundamental human liberties.

  2. Salim Hamdan’s Sentence Signals the End of Guantanamo - CommonDreams.org says...

    [...] is, I believe, an extremely important point, as it was apparent during Hamdan’s two-week trial that he had been exploited by those seeking to prosecute him, who had built a case against him [...]

  3. don.keruskie.com » Andy Worthington: The Media’s Response to the Hamdan Trial: Due Process or Dictatorial Sideshow? by Author's Name says...

    [...] asked incredulously, “Is driving a car a war crime?” — and that, despite the verdict, there remain fundamental flaws with a system that allows the use of coerced evidence and [...]

  4. exotraxx division says...

    [...] was one of the first prisoners to be charged again (with the Australian David Hicks and the Yemeni Salim Hamdan) when the Commissions were revived by Congress later that [...]

  5. Tim Stevens says...

    You might be interested in the 5-part series we’re running this week at Complex Terrain Laboratory. Brian Glyn Williams’ eye-witness account of his role in the recent Salim Hamdan trial.

    Regards,

    Tim

  6. PoliTrix » Blog Archive » Andy Worthington: An Empty Trial at Guantanamo says...

    [...] US “war crimes” trial since the Second World War, following the underwhelming trial of Salim Hamdan this summer — opened not with a bang, and not even with a whimper, but with complete [...]

  7. PoliTrix » Blog Archive » Andy Worthington: Bin Laden’s Driver To Be Released From Guantanamo; Government Defeated says...

    [...] CNN reports that Salim Hamdan, a former driver for Osama bin Laden, who was convicted in a trial by Military Commission at Guantánamo during the summer for providing material support for terrorism, is to be flown out [...]

  8. Andy Worthington: Bin Laden’s Driver To Be Released From Guantanamo; Government Defeated | NewsMesh says...

    [...] CNN reports that Salim Hamdan, a former driver for Osama bin Laden, who was convicted in a trial by Military Commission at Guantánamo during the summer for providing material support for terrorism, is to be flown out [...]

  9. exotraxx division says...

    [...] August, Hamdan became the first prisoner of the United States to face a war crimes trial since the Second World War, and although opponents of the system of trials by Military Commission [...]

  10. Seven Years Of Guantánamo, And A Call For Justice At Bagram | Dr Aafia Siddiqui - The Prisoner 650 says...

    [...] hunger strike, complaining about the fact that they remain imprisoned without charge or trial while Salim Hamdan, a driver for Osama bin Laden who was convicted of providing material support for terrorism after a [...]

  11. Andy Worthington: Seven Years of Guantanamo, Seven Years of Torture and Lies | World Tweets says...

    [...] have recently embarked on hunger strikes at Guantánamo. They are, understandably, incensed that Salim Hamdan, a driver for Osama bin Laden, was repatriated in November, to serve out the last month of the [...]

  12. freedetainees.org » How Cooking For The Taliban Gets You Life In Guantanamo says...

    [...] of Salim Hamdan to that of Ghaleb al-Bihani. Last August, Hamdan, a driver for Osama bin Laden, was tried at Guantánamo in the Military Commissions conceived by Vice President Dick Cheney and his advisers, sentenced and [...]

  13. How cooking for the Taliban can get you Gitmo’d « A War of Illusions says...

    [...] of Salim Hamdan to that of Ghaleb al-Bihani. Last August, Hamdan, a driver for Osama bin Laden, was tried at Guantánamo in the military commissions conceived by Vice President Dick Cheney and his advisers, sentenced and [...]

  14. Farce at Guantánamo, as cleared prisoner’s habeas petition is denied by Andy Worthington « Dandelion Salad says...

    [...] to Judge Leon’s rulings is based on the release from Guantánamo of another Yemeni prisoner, Salim Hamdan, who was sent home last November to serve out the last month of a short sentence he had been given [...]

  15. Political Jib.com » Andy Worthington: Obama’s First 100 Days: A Start On Guantanamo, But Not Enough says...

    [...] who helped overthrow the first incarnation of the Military Commissions in June 2006 (in the case of Salim Hamdan) — who have recently taken positions in the government (Katyal is the principal deputy [...]

  16. Obama’s First 100 Days: A Start On Guantánamo, But Not Enough « Dandelion Salad says...

    [...] who helped overthrow the first incarnation of the Military Commissions in June 2006 (in the case of Salim Hamdan) — who have recently taken positions in the government (Katyal is the principal deputy Solicitor [...]

  17. Get your News » Andy Worthington: Former Insider Shatters Credibility of Military Commissions says...

    [...] include the lack of experience of the military judges, even though many of them displayed a “remarkable independence,” and refused to “serve as little more than an ‘amen chorus,’ witlessly [...]

  18. Andy Worthington: No Escape From Guantanamo: The Latest Habeas Rulings | TipTe.com says...

    [...] farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence [...]

  19. Andy Worthington: No Escape From Guantanamo: The Latest Habeas Rulings | Obama Biden White House says...

    [...] farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence [...]

  20. No Escape From Guantánamo: The Latest Habeas Rulings by Andy Worthington « Dandelion Salad says...

    [...] farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence [...]

  21. Ali al-Marri, The Last US “Enemy Combatant,” Receives Eight-Year Sentence + Ali al-Marri’s Statement In Court by Andy Worthington « Dandelion Salad says...

    [...] after eight years of the Military Commissions — each of which, in various ways, was regarded as compromised or inadequate — it is, frankly, difficult to perceive the logic in the world of “warriors” [...]

  22. Prosecuting a Tortured Child: Obama’s Guantánamo Legacy. By Andy Worthington « Kanan48 says...

    [...] to be cosmetic, and, crucially, judges in the only two full trials that ever took place (those of Salim Hamdan and Ali Hamza al-Bahlul), as well as the judge in the case of Mohamed Jawad (released in August [...]

  23. The Progressive Mind » The Torture of Omar Khadr, a Child in Bagram and Guantánamo | Andy Worthington says...

    [...] by President Obama on his first day in office (after they had succeeded in delivering just three dubious results), and were then revived again by President Obama, with the support of Congress, last [...]

  24. Canadian teenager held at Gitmo eight years-Andy Worthington « FACT – Freedom Against Censorship Thailand says...

    [...] to be cosmetic, and, crucially, judges in the only two full trials that ever took place (those of Salim Hamdan and Ali Hamza al-Bahlul), as well as the judge in the case of Mohamed Jawad (released in August [...]

  25. Andy Worthington: No Escape From Guantanamo: The Latest Habeas Rulings | BlackNewsTribune.com says...

    [...] farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence [...]

  26. The Torture of Omar Khadr, a Child in Bagram and Guantánamo « roger hollander says...

    [...] by President Obama on his first day in office (after they had succeeded in delivering just three dubious results), and were then revived again by President Obama, with the support of Congress, last [...]

  27. After Recent Ruling in the Case of Bin Laden’s Cook, Guantánamo Should Close by July 2012 « Eurasia Review says...

    [...] August 2008, when Salim Hamdan, a Yemeni who had taken a job as part of bin Laden’s car pool, was tried by Military Commission, a military jury gave him a five and a half year sentence, which translated to just five more [...]

  28. Ben Nivens says...

    Mcfadden was a former CIA employee, who bounced around the Pentagon looking for notoriety. Contrary to what he says, he was not FBI,

  29. Andy Worthington says...

    Thanks, Ben, but I recall that, in the trial, he was discussed as working for the naval Criminal Investigative Service, and that he submitted a report compiled with Ali Soufan of the FBI.

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