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Hamdan’s Military Commission Hearing

by Dinah PoKempner, general counsel  
 
December 7, on Air Sunshine flying out from Guantanamo Bay

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Yesterday was a long, surreal day – separated from today by only two hours of sleep, bracketed by rides in coast guard boats to and from the commission hearing, which stretched from nine in the morning to just before midnight.  
 
An early rise was necessary to allow us to navigate the over-the-top security measures to access the commission building – three or more searches to traverse a couple hundred feet from the parking lot, an area covered by guards and snipers as well. Once inside, should one of our NGO observer contingent have to attend to nature’s call, we must all troop outside under military escort and wait while another soldier guards the port-o-potty (from what? banana rats?). As Salim Ahmed Hamdan is force-marched in or out by his burly guards, military police announce his movements with loud knocks, keep us seated, and then confine us to the courtroom until he is locked into a cell. No doubt there are some genuine security issues, but the awkward routine strikes most of the civilian observers as more theatrical than practical. Quite a few of the reporters have abandoned this stage set for the press room, which has internet, a video feed, and chairs you can actually move.  
 
When we finally got inside, the first order of business was the defense’s motion to disqualify one of the simultaneous interpreters from yesterday’s proceeding. Turns out she was not consistently using Modern Standard Arabic, and had rendered the accusation that Hamdan was Osama bin Laden’s “driver and bodyguard” as serving as his “chauffeur and lawyer.” The court, having granted the motion, was stuck with only one qualified simultaneous interpreter who needed periodic breaks throughout as the hearing drove on until 11:30 pm with lawyers and witnesses speaking faster and faster. At least the headphones worked this time. The prosecution began to put forward its evidence that Hamdan is an unlawful enemy combatant, and hence within the jurisdiction of the commission. Judge Navy Captain Allred yesterday had reserved decision on whether Hamdan’s status determination was based on all the elements relevant to whether someone is protected under the Geneva Conventions, or whether he should only consider those portions reproduced in the Military Commissions Act. The government and defense were hedging their bets, focusing on the broader set of elements at stake in the Geneva Convention requirements, and aiming to show whether Hamdan did or did not fit into one of the following categories:
  • a member of the armed forces of Afghanistan or of a militia or volunteer corps forming part of the armed forces;
  • a member of another militia or volunteer corps that had responsible command, a uniform or distinctive sign, that carried arms openly and that generally operated in accordance with the laws and customs of war; or
  • a civilian who accompanied the armed forces (to provide services) and was authorized to do so with an identity card.
First up was Major Hank Smith, who had the job of interdicting movement on Highway 4, the main route between Pakistan and Kandahar, just as the Taliban was preparing its last stand in that city. Smith commanded some 15 Americans and between 600-800 Pashtun Afghans. On November 24, 2001, he had secured an empty town following a nighttime battle with the Taliban forces. Midday, as bombardment continued in the distance, he visited a checkpoint his men had established. While there, he saw his men dragging Hamdan away from a Japanese hatchback. He testified that at various points he himself saw or was briefed that there were a couple of SA-7 (anti-aircraft) missiles in the back of the vehicle.  
 
Smith also testified that a white van had stopped ahead of the Japanese car at the checkpoint. Smith said he was told that two Arabs had come out of the van fighting (one trying to detonate a grenade) and were killed by the Afghan soldiers. A third, Sayid Boujaadia, was captured. (Boujaadia is also being held at Guantanamo and was one of the defense-requested witnesses). Smith said that as the commanding officer, he was busy and distracted that day, but had Hamdan placed under US guard to keep him safe from the Afghan soldiers who were talking about killing him. A Taliban permit for Hamdan to carry arms was found, but no other weapons.  
 
The prosecution also called two interrogators, Special Agents George Crouch and Robert McFadden, who testified to their conversations with Hamdan. According to defense counsel, Hamdan had been interrogated some 23 times during his detention. At no time did either agent advise Hamdan of his rights to have counsel or remain silent, as it was not government policy to do so. The government led both agents through a colloquy intended to establish that neither had threatened, yelled at, or coerced Hamdan. Had they been coercive, the information they elicited from the detainee would still be admissible in a military commission, but not a federal court or a court martial – so long as the military commission judge found it “reliable.” (Federal courts and courts martial would not allow the use of such information.) This, of course, leads one to wonder just how the colloquy will go with Khalid Sheikh Mohammed’s interrogators (did he tell you this before or after being waterboarded?).  
 
Both agents traced Hamdan’s interest in jihad to a decision to fight in Tajikistan, which had been wracked by civil war in the 1990s; however, the opportunity for jihad had evaporated before he made it there. Stuck in transit in Afghanistan, they claimed that he received an invitation to speak with Osama bin Laden, and that he finally managed to locate him. According to the agents, bin Laden made the Yemeni feel appreciated and offered him a job driving around his farm; in six months, he passed scrutiny and was offered a position as bin Laden’s personal driver.  
 
Both agents recounted how Hamdan told them that he had undertaken light arms training at one of the al-Qaeda camps. Testimony was both that this was “required” and that Hamdan “requested” the training, though the defense brought out later that it was quite standard for men moving around Afghanistan to be armed for their own protection, showing a picture of their own expert witness sporting a Kalashnikov assault rifle his guide had equipped him with. Hamdan was also described by the agents as one of bin Laden’s bodyguards, although McFadden recounted that Hamdan’s assigned role was driving bin Laden out of danger while the others fought off would-be attackers. Hamdan told the agents that he was familiar with bin Laden’s positions on the US (against whom the sheikh declared war) and the Taliban (whose armed struggles bin Laden urged Arabs to support) – views that were widely publicized in Afghanistan. Both agents also described how Hamdan was reportedly required on various occasions to drive bin Laden and his entourage around to various safe houses in Afghanistan for his security, at times that seemed to coincide with major terrorist incidents such as the bombing of the East African embassies, the attack on the USS Cole, or 9/11, and that Hamdan had either reason to know or to suspect that bin Laden had been involved in these events based on remarks and conversations he overheard among senior figures.  
 
But on cross examination, Agent Crouch confirmed that Hamdan had never claimed firsthand knowledge of terrorist cell operations, or foreknowledge of these attacks, and indeed, didn’t ask others about such operations, although Crouch professed some personal disbelief that this could have been true. Agent McFadden, who testified that Hamdan told him of picking up and delivering arms on behalf of al-Qaeda, added that Hamdan did not know until they had begun the journey where they were going in the pre- 9/11 evacuation of bin Laden’s compound. McFadden identified Hamdan as standing in proximity to bin Laden on a short videotape of them both at a celebration, and testified that Hamdan pledged bayaat, an oath of loyalty, to bin Laden and his vision of jihad. Most dramatically, this senior agent described Hamdan’s attitude towards working for bin Laden as “uncontrolled enthusiasm.”  
 
When Hamdan sits there in earphones, he looks a lot more like a neighborhood dry cleaner than a dangerous terrorist. Slight of build and swimming a bit in a black and white checked jacket, he smiled reflexively and nervously to the judge, his interpreter, and everyone else. It wasn’t easy to imagine him as someone who would be invited to “conspire” with “senior members” of any organization, never mind one that featured sleeper cells. If anything, the agents’ testimony tended to reinforce the impression that Hamdan, although perhaps a grateful employee, was small potatoes in the al-Qaeda establishment. These accounts at most made him out to be a sort of “step ‘n fetch it” guy who carried a gun, got a thrill being close to the boss, and drove a bunch of plotters and weapons around with a few hazy retrospective ideas of what his superiors had been up to.  
 
All this makes you wonder why the US is spending millions of dollars and outraging its allies to prosecute him in a jerry-rigged military commission. The government’s witnesses convinced me that Hamdan himself wasn’t important. They confirmed he had been cooperative, trying to satisfy his American handlers just as he tried to satisfy his al-Qaeda employers. But his case is an ice-breaker for the commissions, a finger exercise for the government which is hoping to try and perhaps execute bigger fish, like the “senior” al-Qaeda leaders who weren’t allowed to be witnesses for this hearing.  
 
The judge allowed the defense to call Sayid Boujaadia, the detainee who was captured the same day as Hamdan. There was a back story to this witness. Boujaadia had been approved for release by an administrative review board (ARB) in 2006, but was yanked back by the government at about the time it became known he might be a witness on Hamdan’s behalf. Defense counsel refused to put a hold on him as a witness for ethical reasons, but along with Boujaadia’s habeas counsel, did finally negotiate a grant of testimonial immunity with the government. The defense specifically requested the judge to explain to him once more what testimonial immunity meant; but even so, the lanky detainee client took the stand wary and baffled.  
 
Boujaadia said he had been hitchhiking back from the Pakistan border area that day when the van he was riding in the back of was stopped. He didn’t know the name of the main highway he was hiking along, he didn’t know the Arab drivers of the van, he didn’t see them get killed, he wasn’t sure what color the van was and didn’t see much inside it because it was dusk, he wasn’t sure if he was hooded or not when he was brought to the room in which Hamdan was detained, and he didn’t want to answer questions as to whether the Americans treated him poorly (he later said they treated him fine – in Afghanistan!). Most significantly, he said he never heard of any anti-aircraft missiles, a statement that must have taken the defense aback as his ARB (review board) records stated that the two missiles found at the checkpoint that day had belonged to the dead Arab drivers of Boujaadia’s van. That evidence, of missiles allegedly in Hamdan’s car, was important to the government’s contention that Hamdan supported combat operations. Indeed, Boujaadia was so anxious he didn’t even want to discuss whether he had been threatened by the US-allied Afghans who first captured him. When defense attorney Charlie Swift finally asked point blank whether there had been a gun pointed at him when he was questioned, Boujaadia pointed to his upper back. Swift asked if he had been frightened. Boujaadia looked at Swift as though he were an imbecile and retorted, “Afraid? I’m human!” Enough said.  
 
This testimony made us wonder if the defense had really had much opportunity to talk to Boujaadia and gain his trust before putting him on the stand. The defense team made clear that they had requested and been denied the opportunity to interview the prosecution’s witnesses, and that the prosecution simply hadn’t responded to their requests to talk to other high-level detainees. Of course, the defense has very little ability to access most pertinent evidence without the government’s cooperation, and the government was hardly bending over backwards.  
 
After a dinner break and before putting on their last witness, the defense moved that the judge reconsider whether Hamdan’s brother-in-law, Nassar al-Bahri, could be called to testify to Hamdan’s actions between 1995 and 1999, in light of government witness testimony as to that time period. The judge agreed that al-Bahri’s testimony could be taken over the telephone from Yemen, but declined to approve a continuance to arrange this, saying they should get him on the line immediately. The defense protested that it was approximately 4:00 am in Yemen, but the judge, apparently concerned by the difficult logistics of convening the commission (arranging building security, ensuring we all made the military flight out), just replied they could wake him up and called another brief recess as everyone’s eyes and jaws popped open. When we reconvened a few minutes later, Allred seemed to have realized the stir he caused, and conceded that given the early hour, a few days to work out the telephone call might be permissible.  
 
The defense had also been unexpectedly granted permission to interview another potential detainee witness, Abdul Rahim al-Sharqawi, also known as “Riyaad the facilitator,” apparently after proffering in a closed session more specific information as to why he would have information on Hamdan’s particular role in al-Qaeda. However, when they met al-Sharqawi late the night before, they learned he was represented by counsel, and that he preferred to speak with them with his counsel present. The defense team then stopped the interview, concerned that they would violate professional ethics to proceed without his lawyer present, as testimony that would be helpful to Hamdan could very well be inculpatory for al-Sharqawi. Al-Sharqawi’s counsel was ready to fly to Guantanamo the next week, but the government opposed both the continuance and granting him access, on the rationale that his habeas counsel was “irrelevant” for the purpose of military commission proceedings. This was a stark contrast to the involvement of Boujaadia’s counsel in arranging testimonial immunity, but the judge just told the parties to “work it out” and left it to defense counsel to file a motion that they had effectively been denied access to the witness should the government continue to rebuff al-Sharqawi’s attorney.  
 
The previous day, when approving the defense’s main expert witness, Judge Allred was surprised to learn that Professor Brian Williams had actually made it onto the military transport. “He’s here? I will never cease to be amazed…” Williams’s testimony was provocative, but largely unreported as the press had already filed their stories much earlier in the evening. An expert on foreign jihadi groups and a consultant to the CIA and Scotland Yard, among others, Williams testified that al-Qaeda’s terrorist operations (al-Qaeda al-Subh) were very distinct from the foreigners’ military unit it sponsored, called the Ansar or 055 Brigade. According to Williams, the 055 Brigade had a chain of command, formal training, wore uniforms, fought under a standard, and generally respected the laws of war to a greater degree than either the Taliban or Northern Alliance. It also operated in close coordination with the armed forces of Afghanistan’s rulers, the Taliban. In his view, Hamdan’s experiences and training were more consistent with a role in this sort of military unit than with terrorism.  
 
After Williams, the judge was ready to hear closing arguments from both sides, despite the fact that it was still not clear what evidence would be considered. The record was littered with outstanding evidentiary motions – from the telephonic witness in Yemen, to whether al-Sharqawi could be interviewed with counsel present, to whether the court would admit into evidence the secret interrogation tape of Hamdan and Boujaadia in Afghanistan, plus the three related transcripts. The judge had also yet to decide whether the government had to prove Hamdan’s unlawful status by a preponderance of the evidence or beyond a reasonable doubt. But hey – we all had to make that military transport plane out. The government even began its argument facetiously: point one, it’s late and we’re tired; point two, Hamdan falls squarely in the definition…  
 
Of course, Salim Ahmed Hamdan was the only one who had time to spare. The government has given no indication that it would release him even if he were acquitted, by whatever court, and the Supreme Court hasn’t decided if he has the right of habeas corpus yet. Even if he is ultimately exonerated by the commission, which seems an extremely unlikely scenario, he still would not thereby gain his liberty, as it is the US position that he can be held as long as the “war on terror” continues and he poses a danger or is a source of intelligence.  
 
We staggered out and tried to make sense of the wild horserace we had just witnessed. Quite apart from the galloping pace and the logistical fumbling, something felt off, weird. We realized that very few objections to testimony had been made. Fact witnesses opined and speculated and drew conclusions of law, and nary an objection was raised (at one point the judge courteously told the government he was capable of drawing the conclusions of law and it wasn’t necessary to have the witness announce them). Even so, the loose legal practice couldn’t have been in greater contrast to the tense and redundant security measures.  
 
The government’s policies on access to witnesses and security, and the judicial pronouncements on deadlines and evidence had an improvised, on-the-spot quality and were not necessarily consistent with what went before. This produced an odd feeling, like we were watching a jam session rather than a legal proceeding. Wasn’t there a score? Hadn’t they rehearsed? Of course, there are places where they do follow the score, have secure facilities for very dangerous defendants, protect national security evidence without blessing coercion or obstructing access to witnesses. In legal terms, these places are the federal courts, or courts martial. Why were we improvising on a military base at 11:30 pm, worrying about making the military transport flight? We were here, of course, because the government doesn’t want to follow the well-rehearsed score of fair trial guarantees. It doesn’t want lawyers visiting the detainees, and it doesn’t want to forego introducing coerced testimony, which may be what they need at this point to convict people like Abu Zubaydah or Khalid Sheikh Mohammed of the most serious crimes.  
 
Of course, sharing any of these thoughts contemporaneously with the press was nearly impossible because we were not allowed to take the boat that was waiting for the last few reporters, but rather were herded to a dock to wait for a speedboat to shuttle us back to our barracks. It was another “rule” announced by our escort, to the puzzlement of others who had never heard of it – another one of those Guantanamo improvisations.  
 
In the early morning hours, after we had reassured our colleagues back in the States that we had not simply disappeared into some detention block, my three friends (human rights observers who happen to be all Muslim women lawyers) helped me kindle small tea lights I had bought at the Navy Exchange for Chanukah candles. We sheltered their flames from the wind with our hands, extracting a small ray of hope against the long day and dark night. That we could do this little thing together, while monitoring rights, was what we liked about America.
 

 
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