Defending Hamdan: The Capture and Defense of Bin Laden's Driver
Sep 22, 2008 at 5:00
Brian Glyn Williams in Issues, Defending Hamdan, Charlie Swift, Salim Hamdan, Guantanamo

Defending Bin Laden’s Driver at Guantanamo: An Expert Witness Account of the First Military Tribunal Since World War II.

The Editor writes: CTlab is privileged to present a personal account of one of the most important legal cases of the ‘War on Terror’.  CTlab associate Professor Brian Glyn Williams of the University of Massachusetts at Dartmouth acted as expert witness for the defence of Salim Ahmed Hamdan, “Bin Laden’s Driver”, in the first US military tribunal since World War II, which concluded last month.

In this five-part series, running each day this week, Brian Williams describes how he became involved in Hamdan’s legal defence.  This was a journey of discovery and revelation for Williams, and one in which he came to understand America’s critical responsibility for upholding the values for which the ‘War on Terror’ purports to be fought.  Crucially, this case underscores the important role that social science serves in establishing truth and justice in war. All images courtesy of Brian Williams.

Part One: The prosecution assembles its case, and Hamdan is assigned idiosyncratic counsel

The Prosecution was confident that the charges of conspiracy and material support for terrorism against Bin Laden’s driver,

Guantanamo Bay, Cuba. Image Courtesy of Brian Williams.Salim Hamdan, would stick.  He had been as near to Bin Laden as any of the prisoners at Guantanamo Bay had been.  For seven years Hamdan had driven Al Qaeda’s chief around and had even been caught red handed on an Al Qaeda film carrying an AK-47 as bodyguard for Bin Laden.

If this were not enough, the Prosecution had other ‘smoking gun’ evidence that would later emerge later.  They were sure the evidence would place the final nail in the coffin and convict this high profile Al Qaeda operative.  His conviction and sentencing in the first Guantanamo Bay court case would be a historic litmus test of the whole system.

Everyone knew that the President himself was following the first Military Tribunal since the Nuremburg and Japanese Tribunals after World War II.  Bush himself was clearly expecting a conviction on all counts.  For its part, the Prosecution was confident it could give the president what he wanted, followed by a sentence of from 30 years to life.

But when the jury made of six members from four braches of the military service (hardly an unbiased panel in the eyes of many critics) issued its verdict and sentence in early August, it was a crushing defeat for a prosecution team that had seemingly been handed a ‘slam dunk.’  The jury rejected the Prosecution’s contention that Hamdan had been involved in the conspiracy to carry out the 9/11 attacks and dismissed the most serious charge of conspiracy against him.  If this were not enough, the jury also dismissed several of the specifics of the lesser charge, i.e. the charge of providing material support for terrorism.  In addition to being cleared on the more serious charge of conspiracy, Hamdan was ultimately convicted on just five counts of the lesser charge (these were mainly to do with driving and providing bodyguard services to Bin Laden).

There was more bad news to come for the Prosecution.  In a final blow, the jury recommended a ‘light’ sentence of just five and a half years for Hamdan.  But it got worse.  As it transpired, the presiding judge in the case, Keith Allred, had already agreed to credit Hamdan with time served, which meant he could potentially be freed in as little as five months – a far cry from the 30 years-plus demanded by the Prosecution.  The stunning verdict and sentence in this showcase trial left both critics and supporters of the Guantanamo Bay Tribunals alike wondering what had gone wrong with the prosecution, and what had gone right with the defense?

An Improbable Defense

From the time he was captured in Afghanistan in November 2001 until the time he had his day in court in August of 2008, it was obvious that Salim Hamdan was no typical Al Qaeda prisoner.  He readily admitted to being one of Bin Laden’s seven drivers and even showed his US Special Force captors where Bin Laden’s various hideout and escape routes were located.  Clearly he was a ‘big fish’ and as such was transported from the deserts of Afghanistan to the green hills of the ‘Pearl of the Antilles’: Guantanamo Bay, Cuba.

Once in Gitmo, the 37 year old Yemeni father of two girls was given a military lawyer known as a JAG (Judge Advocate General) named Charlie Swift.  Lieutenant Commander Swift, a former frigate commander, had been given a bad case and everyone knew it. In the post-9/11 environment anyone even remotely associate with the killing of almost 3,000 people on September 11th (and some who were not even remotely tied to 9/11, such as Saddam Hussein) were seen as terrorists.  Hamdan’s sheer proximity to Bin Laden alone was enough to make him a lightning rod for those wanting retribution.  Most critics of Guantanamo Bay felt there was very little chance of him receiving a fair trial, much less beating the charges of conspiracy and material support for terrorism.

But Swift did something no one expected.  He began to believe in his client’s innocence of involvement in Al Qaeda’s terrorism.  When Swift heard that Hamdan had freely divulged information without coercion (when other skilled Al Qaeda captives had kept silent throughout various ‘enhanced interrogations’), Swift grew intrigued.  It turned out that Hamdan would gladly share information if he was given such small favors as the chance to talk to his wife on the phone or given access to car and mechanic magazines.  This affable driver did not seem to have the modus operandi of a hard core Al Qaeda operative.

As Hamdan shared his story with Swift, it became increasingly obvious that he was not the brightest of terrorists.  With only a fourth grade education and an aptitude for driving that came from his experience as a cab driver in his native Yemen, he didn’t seem to have much to offer an organization like Al Qaeda.  When Swift heard that Hamdan had joined Bin Laden after being offered a job as a driver for $200 a month, he became convinced his client was a scapegoat for the real Al Qaeda terrorists.

If Hamdan had been a terrorist mastermind, Bin Laden would never have abandoned him along with his other flunkies and low-level employees when he fled over the mountains into Pakistan.  Was it fair to blame the driver for Bin Laden’s attacks? Had Hitler’s chauffer been tried at Nuremburg?

And with that the battle began that would eventually see Swift’s marriage crumble and himself denied promotion by the US military (tantamount to being fired).  Far from offering up a pro forma ‘defense’ of the sort many at Gitmo expected from the various defense lawyers, Swift promised Hamdan that he would fight his case to the president himself.  When a skeptical Hamdan asked him if his uphill defense would make him rich, Swift replied, “no, but it just might make me famous.”

Tomorrow, Part Two:  Defense lawyer Swift starts to make waves in the establishment, and begins his search for an expert witness.

Article originally appeared on The Complex Terrain Laboratory (/index.html).
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