Legal debate continues after the first conviction of a Guantánamo detainee
A mixed verdict against Salim Ahmed Hamdan has his defense lawyers preparing to appeal to federal civilian courts.
The first war crimes trial held in the United States since World War II ended this week in a mixed verdict against Yemeni national Salim Ahmed Hamdan, the personal driver of Al Qaeda leader Osama bin Laden. After a two-week-long trial and three days of deliberations, the military court in Guantanamo Bay, Cuba, convicted Mr. Hamdan of providing material support for terrorism by driving Mr. bin Laden around Afghanistan. In spite of the conviction, legal debate regarding the trial rages on.
Hamdan is the first of as many as 80 Guantanamo detainees expected to be tried for war crimes in the near future.
Critics of the court say the trial did not adhere to American standards of justice and that Hamdan, a chauffeur, was not an important player in Al Qaeda, a view echoed by the presiding judge in the case.
While Hamdan was convicted on five counts of providing material support for terrorism, the judge said the charges duplicated each other and ordered that he be sentenced only for one count, which he summarized as "driving Mr. bin Laden around Afghanistan."
The mixed verdict is "a setback for military prosecutors," who had hoped for a conviction on all counts, reports The New York Times. The article adds that both sides tried to emphasize the importance of the trial by portraying it as the heir to the 1940s Nuremberg trials against the former Nazi leadership. The defense team criticized the Nazi rhetoric as theater, saying that personal servants of the Nazis were never considered war criminals.
The rules for the Hamdan trial were laid out in the Military Commissions Act of 2006, which was modified after the Supreme Court ruled in June that defendants convicted before military courts must be allowed to appeal to a federal civilian court.
Under the military commission, Hamdan did not have all the rights normally accorded either by U.S. civilian or military courts. The judge allowed secret testimony and hearsay evidence. Hamdan was not judged by a jury of his peers and he received no Miranda warning about his rights.
Hamdan's attorneys said interrogations at the center of the government's case were tainted by coercive tactics, including sleep deprivation and solitary confinement.
All that is in contrast to the courts-martial used to prosecute American troops in Iraq and Vietnam, which accorded defendants more rights.
Hamdan's attorneys maintain their client's innocence. They say that the crimes he has been convicted of amount only to acting within his capacity as Bin Laden's driver and do not constitute war crimes. They also say his conviction under a legal regime created five years after his arrest in 2001 is an illegal case of retroactive prosecution. Under the Military Commissions Act, Hamdan's conviction is automatically appealed to a higher military body. After that, lawyers say they will appeal to a federal civilian court, reports Agence France-Presse.
Defense lawyers said they would appeal and were optimistic the case would be taken up by federal civilian courts, which have previously questioned the administration's prosecution and treatment of Guantanamo inmates.
"I am very confident that this will go on appeal to the Court of Appeals for the District of Columbia if nothing else to challenge many aspects of this system," said military lawyer Brian Mizer from Hamdan's defense team....
They also argue that Hamdan was convicted under a law adopted in 2006, which established the military commissions, long after he was captured in 2001 in Afghanistan.
Prior to his conviction, Hamdan's defense succeeded in getting the judge to subtract five years from his sentence to account for the time he has spent in detention at Guantanamo. But the agreement may have little effect. The Bush administration has signaled that even in the event of a full acquittal on appeal, defendants such as Hamdan, who are considered enemy combatants, can be held until the end of the war on terror. In practice, that could mean an indefinite detention, reports the Los Angeles Times.
Despite the potential for a sentence less than or equal to the time he already has served, Hamdan has been told by his lawyers of the Bush administration's intent to keep all branded "enemy combatants" detained indefinitely, regardless of any acquittals.
Swift said that position would be challenged vigorously by the defense.
Hamdan, who reportedly possesses only a fourth-grade education and cannot ascertain his exact age, was not involved in the planning or execution of any terrorist actions, maintain his lawyers. The tribunal's judge, Navy Capt. Keith Allred, seemed to agree. In a sentencing hearing that followed Hamdan's conviction, Captain Allred refused to allow an FBI agent to testify about his experiences at the World Trade Center site on Sept. 11, 2001. He said that Hamdan was "such a small player" in Al Qaeda that the events of the day were not relevant to his specific case, reports Reuters.
Later in the sentencing hearing, the court heard from psychiatrist Emily Keram, who interviewed Hamdan for more than 120 hours during his five years of detention at Guantanamo. According to USA Today, Dr. Keram testified that Hamdan was a poor man, drawn to working for bin Laden because he hoped to use the high salary to start a family. When he learned about Al Qaeda's attacks on civilians, Keram says he felt "betrayed."
Orphaned at age 10 and with little family in Yemen, Hamdan dropped out of school and spent years in Yemen's capital, Sana, driving a taxi. Keram said Hamdan was desperate to start a family. Yemeni custom demands a payment of thousands of dollars to a family for the right to marry a woman, and his job would never make him that much.
That's when he "found" bin Laden, Keram testified. He was paid $100 to $150 a month to drive him, and bin Laden gave him $1,000 to help with the payment to his future wife's family.