At the war crimes court here, the prosecution never rests.
Government lawyers announced Tuesday that they had finished presenting their case against Salim Ahmed Hamdan, whom they have portrayed as a trusted cog in the Al Qaeda machinery. Hamdan was a driver for Osama bin Laden.
But Justice Department lawyer John Murphy told the court that he didn’t want to rest until the military judge in the case decided whether he could call one more federal agent to the stand.
Pentagon counterintelligence agent Robert McFadden is expected to testify that in a May 17, 2003, interrogation, Hamdan said he had once sworn an oath of loyalty to Bin Laden. It is the only time in more than 40 known interrogations that Hamdan allegedly made that admission.
Defense lawyers learned from other evidence turned over by the prosecution that Hamdan was moved to solitary confinement and deprived of his “comfort items,” reportedly even his Koran, on the eve of the interrogation. The Yemeni’s lawyers want to review other detention records to see if Hamdan was subjected to sleep deprivation or psychological manipulation.
Navy Capt. Keith J. Allred, the military judge hearing the case, ordered the government to turn over the records weeks ago and announced Tuesday that because his order had been ignored, he would presume coercion was involved unless the prosecutors could convince him otherwise.
Allred had already excluded some evidence obtained in highly coercive circumstances, including statements made while Hamdan was in secret U.S. custody at Bagram Air Base and in the Pansher Valley in Afghanistan.
A hearing was set for this morning. The defense was to begin calling witnesses as soon as Allred decides whether McFadden, who is already at Guantanamo, can testify.
Hamdan’s lawyers don’t want to start their case until the prosecution rests because they might first move to dismiss the charges on grounds the government hasn’t met the burden of proof, said Michael J. Berrigan, deputy chief defense lawyer for the tribunal.
Hamdan, 38, is charged with conspiracy and material support to terrorism, punishable by up to life in prison.
There’s also a risk, with the prosecution’s case still open, that the government could respond to defense testimony by calling other witnesses or raising issues beyond those already brought to the court’s attention, Berrigan said.
Asked why the government was reluctant to rest with the understanding that McFadden could be called if Allred agrees, the chief prosecutor, Army Col. Lawrence Morris, replied cryptically, “Not finished.”
Since testimony began July 22, Murphy and his team have called 13 witnesses -- two U.S. soldiers involved in taking Hamdan into custody in Afghanistan, nine federal agents, a former journalist who interviewed Bin Laden a decade ago and a young terrorism consultant paid to make a movie on the history of Al Qaeda.
The agents told the six-member military jury that Hamdan identified senior Al Qaeda operatives, drew maps to training camps and led U.S. investigators to Bin Laden residences and guest houses.
Hamdan was described by all of his interrogators as polite and agreeable, but they also noted that he was never advised of any right to remain silent nor warned that the information he was providing could be used against him.
Each of the agents was asked on cross-examination if Hamdan had participated in the planning, organizing or execution of any terrorist act. Each answered no.
But FBI agent George M. Crouch Jr. told the court that underlings like Hamdan helped in the day-to-day activities of the terrorist network and spirited Bin Laden out of harm’s way when U.S. airstrikes began on Al Qaeda strongholds in Afghanistan three weeks after Sept. 11, 2001.
On Monday, the court watched a 90-minute film commissioned by the tribunal as a primer on Al Qaeda and its mission. The film, “The Al Qaeda Plan,” was modeled on “The Nazi Plan,” which was presented to the Nuremberg war crimes court that judged Adolf Hitler’s inner circle in the late 1940s.
Hamdan defense lawyer Charles Swift concluded his cross-examination of the film’s producer, terrorism consultant Evan F. Kohlmann, by asking if Hitler’s driver was prosecuted for war crimes. Kohlmann said he didn’t know.
One of the prosecution’s last witnesses Tuesday was former ABC News correspondent John Miller, who spent 11 days being shuttled around the Afghanistan-Pakistan border by Al Qaeda drivers and bodyguards before interviewing Bin Laden.
Miller, now a spokesman for the FBI, told the court out of the presence of the jury that he didn’t recognize Hamdan as one of the Al Qaeda figures involved in the May 1998 interview logistics.