In the custody of U.S. forces in Afghanistan, Salim Ahmed Hamdan drew maps to Al Qaeda training camps and compounds for his captors.
A driver for Osama bin Laden for nine months before his November 2001 arrest, Hamdan guided FBI and military intelligence agents to Bin Laden’s private residences and guest houses and identified photos of terrorist kingpins still at large.
Interrogated dozens of times by soldiers, analysts and investigators after his transfer to Guantanamo in May 2002, the Yemeni with a fourth-grade education gave those working to avert further terrorist strikes vital information about key perpetrators of the U.S. Embassy bombings in East Africa in 1998, the destroyer Cole blast in 2000 and the Sept. 11, 2001, attacks.
With that wealth of evidence Hamdan readily handed over to interrogators, the U.S. government built a case against him -- the war crimes court does not recognize a right against self-incrimination.
A parade of intelligence agents testifying Thursday described the 38-year-old Yemeni as cooperative, cordial and a source of reliable information about the terrorist hierarchy.
Their testimony made clear that the first war crimes case to be tried here has been built almost entirely on statements provided by the defendant.
All of the seven FBI and Naval Criminal Investigative Service agents told the court it was their agency’s policy not to advise foreign terrorism suspects that anything they said could be used against them.
“A source can be a suspect as well,” FBI Special Agent Robert Fuller told Hamdan’s defense attorney Charles Swift when asked whether he considered the defendant a war criminal at the time Fuller worked with him to locate and identify Al Qaeda assets in Afghanistan in early 2002. Hamdan was then being held by U.S. forces in Kandahar.
Testimony this week cast Hamdan as a $200-a-month servant in the Al Qaeda network, not a member of Bin Laden’s inner circle. Even the tribunal’s chief prosecutor, Army Col. Lawrence Morris, has cautioned journalists against overstating Hamdan’s importance to the terrorist network.
Under questioning by defense lawyer Harry H. Schneider Jr., FBI Special Agent Craig Donnachie conceded that Hamdan never suggested he was involved in planning, organizing or executing a terrorist act.
“If the general commits a war crime, is his driver guilty?” Schneider asked, drawing a “no” from the prosecution witness.
The agents learned during defense questioning that the head of Bin Laden’s bodyguards -- Hamdan’s boss -- and an Al Qaeda errand boy arrested along with Hamdan refused to cooperate with U.S. interrogators during their time at Guantanamo and were eventually released without being charged. Both are now free in Morocco, their homeland.
The agents, testifying before a six-member military jury, all affirmed that no coercion was employed to get Hamdan to cooperate, and each concluded that he gave them useful information.
One FBI agent, Ammar Y. Barghouty, told the court that Hamdan’s identification of accused Cole attack plotter Abd Rahim Nashiri and his willingness to testify against him provided the government with a solid basis to prosecute the Saudi.
Nashiri was captured in 2002, shortly after Hamdan told Barghouty that the Saudi had bragged about masterminding the Cole bombing, the agent said.
Barghouty, who was called by the defense during this week’s government testimony because of a scheduling conflict, suggested that Hamdan had cooperated in hopes of getting relief from his own situation.
“A drowning man will reach for a twig, and I’m a drowning man,” Barghouty quoted Hamdan as saying about his collaboration.
Human rights advocates have added the self-incrimination pitfall to their long list of criticisms of the Pentagon’s system of trying terrorism suspects.
“It’s perverse that the only person who agreed to cooperate is being hung with his own words, while those who stayed silent are home and free,” said Ben Wizner, staff attorney for the American Civil Liberties Union.
Abu Assam Maghrebi was shown on an Al Qaeda hierarchy chart created by the FBI’s former chief Al Qaeda expert, Ali Soufan, to be in charge of Bin Laden’s bodyguard staff, including Hamdan.
He was released in 2003 after refusing to talk to many of the same agents who successfully mined Hamdan for crucial information. Guantanamo officials, unaware of Maghrebi’s higher standing, probably released him because he didn’t give interrogators the material they could have used to bring him to trial, as did Hamdan.
Al Qaeda errand boy Said Boujaadia, who was arrested at the same roadblock within minutes of Hamdan, also told investigators little and was cleared for release. He has been back in Morocco since December.
The judge hearing Hamdan’s case, Navy Capt. Keith J. Allred, ruled last week against a defense motion to dismiss the case on the grounds that Hamdan had never been advised that his statements could be used against him.
Allred said that U.S. Supreme Court rulings recognizing certain constitutional rights for the detainees didn’t appear to include the 5th Amendment.
The chief prosecutor for the tribunal, Morris, acknowledged that if Guantanamo prisoners had a right against self-incrimination, “it would require some adjustment on our part” to prosecute Hamdan.