Salim Ahmed Hamdan already had earned a dubious spot in American history before he was convicted today in the nation’s first full war-crimes trials since World War II.
Hamdan, though, is anything but a towering historic figure.
As a ragtag orphan from the deserts of Yemen, he found his way to jihad in Afghanistan and eventually landed a job as driver and bodyguard for al-Qaida leader Osama bin Laden. When he was captured in November 2001, two surface-to-air missiles were found in his car.
A jury of six military officers delivered a split verdict this morning, finding Hamdan guilty of supporting terrorism but clearing him of conspiracy charges. Hamden’s lawyers had argued that he simply needed the $200 a month wages for the driving job and was not an al-Qaida member. Government prosecutors asserted he had risen through al-Qaida’s ranks to become a vital part of the terrorist group.
Hamdan, who faces a maximum life sentence, held his head in his hands and wept at the defense table after a Navy captain presiding over the jury read the sentence in a hilltop courtroom at the U.S. Navy base in Guantanamo Bay, Cuba, the Associated Press reported.
Breaking new ground
Despite its historic significance, Hamdan’s trial is almost a sideline affair as Americans go about dusting their televisions for the Olympics and debating which presidential candidate did a bigger flip-flop on offshore oil exploration.
Yet we will hear about Hamdan for years to come because his case has broken several patches of new ground.
Hamdan’s trial is the first to be conducted by the tribunals the Bush administration created to prosecute non-U.S. citizens on terrorism charges outside the civilian and military court system. The government plans to try up to another 80 of some 265 prisoners at Guantanamo Bay in Cuba where Hamdan had been held since May 2002.
The court itself is as much on trial as Hamdan, Reuters reported. Military defense lawyers and human-rights monitors say the trials are rigged to convict because they allow hearsay and coerced testimony obtained without prisoners being warned that their confessions could be used against them.
War itself on trial
Like few others, Hamdan’s story sheds light on how the Bush administration has prosecuted the war on terrorism since 9/11, and where it might be heading now, said Mahler, who is the author of a forthcoming book: “The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power.”
Hamdan, who has a fourth-grade education, was not an obvious choice for this historic role of the first Guantanamo detainee to go before the military tribunals in a makeshift courtroom surrounded by coils of razor wire.
“He didn’t appear to be a high-ranking officer of al-Qaida, nor was he known to have participated in any specific terrorist operations,” Mahler said. “But from America’s perspective, he did have certain things going for him. Because the military-tribunal system was brand-new, the government thought it made sense to try some lower-ranking operatives first, in case anything went wrong.”
And his story certainly had narrative appeal.
“Hamdan had been with bin Laden from 1996 to 2001, a stretch of time that spanned not just 9/11 but al-Qaida’s 1998 attacks on two embassies in East Africa and the 2000 bombing of the U.S.S. Cole in Yemen,” Mahler said.
Plans went awry
But things didn’t turn out as the administration planned. Beginning in 2004, attorneys working on Hamdan’s behalf built a defense that delayed the military tribunal as the case gradually worked its way through courts until 2006, when it reached the Supreme Court, a majority of justices found that the president’s military tribunals were unlawful.
“In response, the administration redoubled its efforts, pressing Congress to authorize the military tribunals, which it did by passing the Military Commissions Act during the waning days of the Republican Congress in the fall of 2006,” Mahler explained.
Hamdan, now 37, was re-charged under that act and held at Guantanamo, in solitary confinement for the most part.
“Finally facing his day in court, Hamdan is a shell of a man,” Mahler said. “According to his lawyers, Hamdan can no longer meaningfully assist in his own criminal defense. He is suicidal, hears voices inside his head and talks to himself.”
For whatever reason, the trial itself has had none of the sense of history and justice that surrounded the Nuremberg Trials following World War II.
“We are not witnessing an epochal ‘war crimes’ trial – the first since the Twin Towers fell on September 11, 2001,” attorney Andrew Cohen said in legal analysis for CBS News. “We are not unwinding the al-Qaida stem. We are not at the heart of the matter. We are, instead, watching penny-ante stuff, a trial the dramatic moments of which have come mostly because Hamdan apparently doesn’t like his attorney and spars with him at the defense table.”
Jurors have learned from Hamdan that he identified key al-Qaida suspects for his American interrogators and drew maps of camps and compounds.
“He had knowledge, clearly, but just as clearly no great urge to fight,” Cohen said. “This testimony does not strike me as emblematic of the sentiments and actions of a dangerous jihadist. … But, to paraphrase the architect of the War in Iraq, you go to trial with the defendant you have, not the one you wish you had.”
Historians will note the Hamdan trial because it was the first full-on military tribunal since the end of World War II, Cohen said. They also will note it, he said, “because of the procedural wrangling that preceded it and the lengthy appellate process that is sure to follow it.”
Whether Hamdan serves a life sentence or is deported back to the Middle East won’t make a difference in the outcome of the war on terror, he said.
Interrogation on trial too
“But the future interrogation questions for our federal courts are hugely important in the upcoming trials of true al-Qaida leaders like Ramzi Binalshibh and Khalid Sheik Mohammed,” he said. “That’s just one reason why the government is watching the Hamdan trial far more closely than you are.”
Even on that measure, Hamdan’s trial was not clearly decisive. While the presiding judge, Navy Captain Keith Allred, threw out evidence from “coercive” interrogation sessions conducted in Afghanistan in 2001, he allowed prosecutors to use evidence from a different disputed interrogation. In that dispute, the judge rejected defense claims that Hamdan was under the influence of sleep deprivation and other coercive programs at Guantanamo in 2003 when he said he had sworn allegiance to bin Laden, the Associated Press reported.
Unlike Hamdan, Mohammed and Binalshibh were held in secret prisons where the U.S. government has admitted using waterboarding and other interrogation tactics that many consider to be torture. It remains to be seen how a judge will deal with that controversial aspect of the trials.
In the final analysis, the outcome of Hamdan’s trial could influence not just how terrorism suspects are treated in the future, Mahler said in Time Magazine, but also whether the whole system that President Bush first authorized in the aftermath of Sept. 11 will survive under the next commander in chief.
“In that sense, the fame – or infamy – of Salim Hamdan may endure long after his trial does,” Mahler said.
Sharon Schmickle writes about foreign affairs and science. She can be reached at sschmickle [at] minnpost [dot] com.