Gitmo Report: Inside the Hamdan Trial

GUANTANAMO BAY, Cuba --- It was three days bobbing and weaving for the defense and prosecution of a key bin Laden lieutenant here last week, with both sides submitting surprising testimony in the opening salvos of a key test for the newly established Military Commissions process.
 
And despite the fireworks, what the few observers allowed into the proceedings will remember most is the chief judge, Navy Capt. Keith Allred, explaining to defendant Salim Ahmed Hamdan just why he should not boycott the court proceedings.
 
"You beat George Bush, Mr. Hamdan," Allred calmly explained. "You won at the Supreme Court, yet you're still confined. I understand your frustrations; you have made a very eloquent statement and I am committed to getting you a fair trial."

Hamdan is one of about 280 detainees currently imprisoned here. A Yemeni citizen, Hamdan was captured in Afghanistan by the pro-American Northern Alliance in November 2001, turned over the American forces and sent to Gitmo in June 2002. He was finally charged more than two years later with "conspiracy to commit terrorism."
 
The charges claim that Hamdan was bin Laden's driver, helped arrange convoy security, was responsible for Bin Laden's personal security, and that he was transporting two shoulder-fired anti-aircraft missiles in the back of his pick-up truck when he was captured.

This is an important case for both defense attorneys representing accused terrorists and for the U.S. government, which is trying to make a viable trial system work against such detainees. Not only is it the first case to be heard since the U.S. began transporting detainees to Gitmo in January 2002, it is also the first trial of anyone from among a select group of detainees that prosecutor Assistant U.S. Attorney John Murphy had called "the worst of the worst" and "trained al Qaeda killers."

Security is exceptionally tight for these cases. Even with the very small number of media and human rights group attendees having been pre-selected, every civilian visitor undergoes two separate and very detailed security checks in order to enter the building. Additionally, all civilian visitors are divided into small groups and assigned a personal escort. There are only 43 visitors' seats available in the tightly secured courtroom housed in an old control tower building overlooking the bay.

The U.S. case against Hamdan is a unique one. Not only do the defense attorneys -- a mix of military and civilian lawyers -- want to win freedom for Hamdan, but they are trying to demonstrate that his and other detainee trials are tainted by Bush Administration political considerations.
 
Defense witness Air Force Col. Morris Davis testified that the Military commissions were distorted to a point where the legal system was sacrificed for political purposes.
 
Davis resigned in January 2007 after 25 months as chief prosecutor of the detainees. He testified that in his August 2005 hiring interview, he was told by Pentagon general counsel William J. Haynes that "we can't have acquittals. We've been holding these guys for years, and we need convictions, not acquittals."

Davis testified that he told his staff that any evidence obtained through water-boarding was unacceptable, as was any evidence obtained through other coercive means. He also spoke of then being castigated by his boss, Air Force Brig. Gen. Thomas Hartman, and told that evidence obtained by water-boarding should be used "since people senior to him liked it."
 
However, in an interesting admission for someone testifying for the defense, Davis told Military.com, "I have never had any doubt about Mr. Hamdan's guilt, or any problem in how the evidence was obtained."

The most surprising piece of Davis's soft-spoken and relaxed testimony was when he related being told by Haynes that "he needed to get all the 9/11 guys charged, and get the public interested, before the [Nov 2006] election," and that "there could be some real strategic political value to charging [high value targets] before the election."

The next day, defense attorney Michael Berrigan argued that Hartman's actions had compromised both the defense and the prosecution, and he related several instances of "Hartman's bullying efforts."
 
Berrigan made the point that the prosecution's role should be that "the guilty not escape and that the innocent not suffer." Coming after the preceding day's testimony from Davis, the overall picture painted by the defense was one in which the government's ostensibly neutral Office of the Military Commissions was highly biased against the defendants and that domestic American election concerns were more important than legal precedent and practice.

Then attention quickly shifted to an interchange between Chief Judge Allred and Hamdan that kept the courtroom breathless.

Through a translator, Hamdan, a Yemeni farmer with a 4th grade education, suddenly spoke up and touched off a 30-minute dialogue between the defendant and Allred that got right to the heart of the matter.

"Arabs talk usually indirectly, not directly," Hamdan said, "this is not directed at you personally. But what law do you bring against me?"

He continued: "International laws are clear, the constitution is clear. ... But what law do you bring against me? Try me on civil law, or any law that's recognized. Did they change the law for my case? You are thinking about tomorrow, or 100 years?"

Allred chose his replies deliberately and slowly.
 
"I understand your frustration," he calmly explained.

"The Government has tried you 3 times. You've been held for 6 or 7 years," Allred added. "Two times they got it wrong, but always they believe you violated the laws of war."

Allred told Hamdan he was carefully applying justice as fairly as the rules allowed.

"I believe you are entitled to a fair trial. I want you to have a fair trial," he said. "This trial will give you an opportunity to see the evidence against you. We hope the process will be fair, and I'm glad you talked to me. At the end of the day, I want you to have a fair trial."

But Hamdan pressed the point of the change in the laws being used to try him.
 
"Congress's law is not the same as American law or international law" he argued. "I'm being tried by government law, and not American law."

Allred did not address the point directly as he told Hamdan, "we want to give you a fair trial that the world will recognize."

Hamdan was not convinced.

"The path is clear," he said. "The path is straight. If you go left or right there is a problem; just go straight. Don't be offended by my words -- just go straight."

Judge Allred ended the exchange with a request that Hamdan not boycott his trial.
 
"It's important that you be present," he said. "The jury will want to see who you are; they'll want to see a well-dressed and smiling Mr. Hamdan, and maybe they'll learn to like you. Or they won't know who you are."

Hamdan was returned to solitary confinement in December 2006 after his Supreme Court victory. There are defense motions outstanding concerning his conditions of confinement, mental stability, and ability to assist in his own defense.

His trial is expected to open the first week of June.

Andrew Lubin is the author of Charlie Battery: A Marine Artillery Unit in Iraq and a contributor to Military.com.