Jury is out for Hamdan, and the tribunal process

Times Staff Writer

The war crimes case against Salim Ahmed Hamdan today goes to a jury of his enemies, hand-selected by the Pentagon official who charged him on behalf of a president who has ordered him imprisoned even if acquitted.

“The eyes of the world are on Guantanamo Bay,” U.S. District Judge James Robertson said July 17 in declining to halt the first trial by military commission.

“Justice must be done there, and must be seen to be done there fairly and impartially.”

But as the first U.S. war crimes tribunal since World War II draws toward a conclusion, many outside the Bush administration question what they’ve seen.


Thirteen senior officers of the Army, Air Force and Navy, many with friends and colleagues who were at the scenes of the Sept. 11, 2001, attacks or other crimes linked to Al Qaeda, were selected by the tribunal’s convening authority, Defense Department Judge Susan J. Crawford, to constitute the juror pool.

Crawford filed multiple counts against Hamdan of conspiracy and giving material support to terrorism. He could face life in prison if convicted.

The 13 potential jurors were whittled down to six and one alternate in less than half a day of questioning and challenges from prosecutors and defense attorneys.

That compares with a six-month process involving 550 potential jurors in the U.S. District Court trial of alleged “dirty bomber” Jose Padilla last year for the same charges.

One Hamdan juror is an Apache helicopter pilot who has been shot at by insurgents during missions over Iraq, Kosovo and Panama. Another, an Air Force colonel, was asked no questions during the vetting process. The Navy captain heading the jury by virtue of seniority was privy to classified briefings about Afghanistan during the period when Hamdan was captured there. The alternate, an Army lieutenant colonel who was excused Friday when the trial concluded, conceded she had “a suspicion” that Hamdan must be guilty of something to have ended up imprisoned here.

Scott Silliman, a Duke University law professor and 25-year veteran of the Air Force Judge Advocate General corps, has criticized aspects of the military commissions but believes the jurors will deliberate without bias.

“They’re all senior officers. This is a highly educated, sophisticated jury, very different from what you would find in Miami or anywhere else where they go by voter registration” to summon potential jurors, Silliman said.

As military officers responsive to a chain of command, he said, Hamdan’s jurors are “well versed in setting aside raw emotion in determining fact” and will heed instructions from the military judge, Navy Capt. Keith J. Allred.


The verdict, however, is likely to make little difference to Hamdan. President Bush has labeled him an “enemy combatant” and ordered him held for the duration of the global war on terrorism.

Officers of the Joint Task Force that administers the prison and interrogation network at Guantanamo are preparing a special, undisclosed place for Hamdan in his post-trial status, said Rear Adm. Dave Thomas, the task force commander.

“Guilty or convicted or whatever, they would be housed in a different facility,” Thomas said of any detainees who complete the war crimes process. No new construction is envisioned at the detention center, but any adjudicated prisoners “would be held separate from the other detainees.”

Detention policymakers here and in Washington insist that none of the Guantanamo prisoners lives in solitary confinement. Most live in cells with cement walls and steel doors, in an echo chamber of cellblocks with bare floors.


Asked how Hamdan could be segregated from the rest of the approximately 265 prisoners yet not be in solitary confinement, Thomas said he would “cross that bridge when I come to it.”

Another irony of Guantanamo is that the judge is weighing a formula for recognizing the time Hamdan has already served for potential sentence reduction in the event that he is convicted. But even if he should be sentenced to less time than he’s already served, he’ll still be imprisoned until the open-ended war on terrorism is over -- unless a new administration rescinds Bush’s order.

Hamdan’s defense was encumbered by “protective orders” that prohibited even the mention of the CIA or its handling of Hamdan during a month in late 2001 when the defendant disappeared into “a black hole” in Afghanistan, said the tribunal’s deputy defense chief, Michael J. Berrigan. He called the two-week trial an “obscenity.”

“What’s the purpose here? Mr. Hamdan is going to be held until the government wants to release him,” Berrigan said. “It really has no connection to the underlying reality.”


Citing national security concerns, none of the agents nor the reports from CIA interrogations of Hamdan were available to the defense. Four prosecution witnesses testified anonymously, and two Army special forces officers called by the defense were questioned behind closed doors, with no media or independent observers allowed.

The tribunal’s chief prosecutor, Army Col. Lawrence Morris, deemed the trial “an open and fair and thorough process.” The prosecutor -- who took over after Air Force Col. Morris D. Davis resigned in protest of political interference in the trials last fall -- said he thought the Hamdan case struck a “balance between security and the right to present a case.”

Davis remains an advocate of the tribunal but left after complaining of “unlawful command influence” by Crawford’s legal advisor, Air Force Brig. Gen. Thomas W. Hartmann.

Human rights advocates disparaged government claims to have conducted a fair trial for the 38-year-old Yemeni with a fourth-grade education.


“This trial has been an embarrassment. It’s embarrassing that the United States would convene the first tribunal since World War II to prosecute such a lowly and marginal figure, and it’s embarrassing that this system has been devised to allow prosecution of the alleged crimes of the detainees while covering up the crimes committed against them,” said Ben Wizner, staff attorney with the American Civil Liberties Union.

He said the Hamdan case was put on first to test the system ahead of prosecutions at which torture will be a central issue, such as the autumn trial expected for five accused plotters of the Sept. 11 attacks.

Administration officials have admitted eliciting confessions from alleged mastermind Khalid Shaikh Mohammed and two other prisoners here through “waterboarding,” the interrogation technique that simulates drowning.

“From Hamdan’s perspective, this is a Potemkin proceeding,” Wizner said, a dry run to provide assurance that no barriers arise to the introduction of coerced evidence or hearsay in future trials.