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Friday
26Sep

Defending Hamdan: Trial and Verdict

Part Five: Salim Hamdan gets his day in court, in the first US military tribunal since World War II


While Hamdan’s court date was initially set for May, it eventually took place in August.  As I was doing field work in Turkey at the time, I was unable to fly in person to Guantanamo Bay to testify.  Instead I testified by video conference from Incrilik Air Base in south-eastern Turkey.  Joe McMillan, an incredibly gifted lawyer working with Swift’s team, walked me through my testimony on the 055 Brigade for the six member military jury.

Once again I painted a picture of an altogether different Al Qaeda than the one most Americans think about when they envision the 9/11 Hamburg Cell.  And once again the Prosecution vigorously sought to undermine me.  Interestingly, they did not, however, attempt to refute my main contention (i.e. that there was a bona fide Al Qaeda field army in Afghanistan).  The evidence I gave for the existence of a large military wing for Al Qaeda was irrefutable and the jury clearly saw this.

Instead of attacking my findings, the Prosecution waged a series of distracting attacks that were meant to divert attention from my main argument.  The Prosecution beat the drum of 9/11 in an effort to get the jury to think solely with their hearts, not their minds.  Having hired an expert witness of their own who created a documentary featuring a barrage of images of the burning World Trade Centers, the Prosecution was tapping into a visceral instinct that all Americans (including myself) could relate to: revenge.  Hamdan and anyone even remotely related to Bin Laden, from the simple Al Qaeda foot soldiers in the trenches to paid employees, was part of a vast conspiracy to attack the US on 9/11.  As such, Hamdan was a terrorist with blood on his hands.

Would the military jury buy into this emotive argument, or my more nuanced approach based on years of studying Afghanistan’s fighting formations and Al Qaeda sleeper cells?  After testifying, I flew back to western Turkey and eagerly awaited the news from Gitmo.

Finally, after two days of jury deliberation, I received a phone call from Joe McMillan at Guantanamo Bay and held my breath as he broke the news.  Joe informed me that the jury had met and had found Hamdan innocent of involvement in conspiring to commit terrorism, but had found him guilty on five of the eight lesser charges of providing material support.  He explained that my expert witness testimony had played a valuable role in refuting the Prosecution’s vast conspiracy charge and had helped explain the existence of missiles in Hamdan’s car.  The jury had clearly rejected the Prosecution’s contention that Hamdan was a terrorist mastermind and had even come to accept the fact that there was another explanation for possession of the missiles than terrorism.  

The verdict was all the Defense could have asked for and now they were nervously awaiting the sentencing.  How many years would the jury give Hamdan for the lesser crimes of driving and protecting Bin Laden?

When the sentence came it was five and half years.  When I heard the sentence I was stunned.  Swift’s team – which had tried unsuccessfully to get a plea bargain of ten years – was of course thrilled.  An ecstatic Swift raised in his fist in the air in triumph while a bewildered Hamdan tried to control his tears as he sought to understand what had just happened.  While President Bush subsequently declared himself ‘satisfied’ with the results, a sentence of what amounted to five more months (after time served) was hardly a victory for those who had established the Guantanamo Bay Military Commissions precisely to lock men like Hamdan up for life.

For me it was a vindication of the US military and rebuttal for all those who felt that an all-military jury could not be impartial.  And it was perhaps a signal that now, seven years after 9/11, we as a nation were finally able to take a step back and look at the war on terror and that sad day in 2001 with more clarity than we did in the immediate aftermath.  I believe that the verdict and sentence also vindicated the US judicial system.

The verdict will doubtless begin the process of rebuilding America’s reputation which has been damaged abroad by those who focus only on our faults and mistakes.  While Guantanamo Bay remains a bone of contention even with close allies like the British, I believe that the Hamdan verdict will begin the process of reminding the world of what America stood for before it became defined by such terms as Abu Ghraib, Haditha, rendition, and most infamous of all, Gitmo.     

Postscript

Hamdan remains in Guantanamo Bay and the Pentagon has declared it has the right to keep him and all other prisoners there indefinitely, despite the sensational verdict.  It will, however, be harder to keep this high profile prisoner in Gitmo after his remarkable victory.  Human rights groups and foreign governments applauded the verdict even as they deplored the continued existence of the Guantanamo Bay system.  The actor George Clooney recently purchased the rights to do a movie on the case with himself possibly playing the role of Charlie Swift.  Both McCain and Obama have criticized the Guantanamo Bay prison and it faces an uncertain future under both candidates.


Brian Glyn Williams
August 2008




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