Vol. 72/No. 31      August 4, 2008

On trial is Salim Ahmed Hamdan, a Yemeni who says he was a driver for Osama bin Laden in Afghanistan. The prosecution is seeking a life prison term for “conspiracy” and for providing material support to “terrorism.” Hamdan has pled not guilty.

The Guantánamo tribunal judge and “jury” are military personnel appointed by the Pentagon. The prosecution can use hearsay and secret evidence. Statements obtained through beatings, threats, and some forms of torture are permissible. Defendants are also denied the right to see and challenge secret evidence used against them.

Hamdan’s fate will be decided by a panel of six colonels and lieutenant colonels. Even if Hamdan is found innocent it would not change his status as an “illegal enemy combatant” or set him free.

In the opening days of the trial, jurors were provided secret evidence in red envelopes. An FBI agent testified that Guantánamo was the only place he was not required to tell those he interrogated that they had the right not to give self-incriminating statements. The identity of another witness who had interrogated Hamdan was concealed.

Hamdan was picked up by Afghan forces at a roadblock in southern Afghanistan in 2001 while driving a car that allegedly contained surface-to-air missiles. He was turned over to the U.S. military authorities in Afghanistan, who transferred him to Guantánamo in early 2002.

In U.S. custody Hamdan says he was subject to beatings, sexual humiliation, long-term isolation, and sleep deprivation. His case has been at the center of legal controversies surrounding the establishment of the military tribunals.

He was first charged and brought before a military commission in August 2004. The trial was halted by decision of a U.S. federal court in Washington, D.C., which ruled the military commissions established by President George Bush in 2001 to be illegal. The case went to the Supreme Court, which in July 2006 upheld the decision.

Shortly following that Supreme Court decision, Congress enacted the Military Commissions Act, establishing the current military court system in Guantánamo. Hamdan legally challenged the new courts as unconstitutional, which the Supreme Court rejected.

In December 2007, Hamdan was declared an “unlawful enemy combatant” by the military judge, Navy Capt. Keith Allred, and was again brought before the military court. During pretrial hearings in April, the former chief prosecutor at Guantánamo, Col. Morris Davis, testified on Hamdan’s behalf, criticizing the tribunal system for a relying on evidence extracted through torture.

The Supreme Court ruled June 12 that Guantánamo inmates have the constitutional right to challenge their detentions, which could force the Pentagon to provide some legal basis for the indefinite incarcerations. Hamdan was one of about 200 prisoners who have filed habeas corpus petitions over the years. The decision opened the door for these to be heard in federal court.

The day the Hamdan trial opened, Attorney General Michael Mukasey announced the administration’s intention to bring a proposal before Congress to review the Supreme Court’s June 12 decision, which would stall the courts in hearing the petitions. The proposal includes preventing the defendants from entering the United States to appear before a federal court in person.

Some 260 prisoners remain in Guantánamo, about 20 of whom have been charged and face trial by military commission. The Pentagon plans to try between 60 and 80.
 
 
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