Driving bin Laden in the 1990s has proven hazardous for Yemeni citizen Salim Hamdan, who has been convicted by a jury of American military officers after a two-week trial by military commission at Guantánamo Bay. The accusations leveled at Hamdan centred on the transport of missiles for Al Qaeda and the aiding and abetting bin Laden’s escape from Afghanistan after the September 11 attacks. Eight counts of supporting terrorism and two counts of conspiracy were filed by the prosecution.
The verdict then. Hamdan was found guilty on five counts of aiding terrorism by serving as bin Laden’s armed bodyguard and driver in Afghanistan whilst knowing that he was intent on attacking the United States. Hamdan was cleared of the important charge of conspiracy after some eight hours of jury deliberations.
The trial has done little to restore confidence in many legal circles, and done much to confirm what many already knew: the Gitmo commissions are in desperate need of abolition. Hamdan’s story provides the template of the Bush Administration’s law-averse politics and the ‘war on terror’. Captured in Afghanistan in November 2001 with two surface-to-air missiles in his car, he found himself in shackled detention in Guantánamo Bay in May 2002. In July 2004, the ill-fated Hamdan was charged with conspiracy to commit terrorism.
During the proceedings, the US Department of Justice prosecutor John Murphy addressed the officers by describing Salim Hamdan, the equivalent of a celebrity obsessed delivery boy on mission, as one of a band of ‘enthusiastic, uncontrollably enthusiastic warriors’. Finding this barely believable, the defense lawyer Lieutenant Commander Brian Mizer called the charge a case of ‘guilt by association’, a case of a low-level employee who worked for low wages between 1997 and 2001. Not a single witness contradicted Hamdan’s claims that he had never been a member of Al Qaeda or responsible in any way for the terrorist attacks.
Mizer’s legal nose detected pure political expediency here – drumming up the cases, for instance, was one way of boosting electoral prospects for 2008. In late March this year, he alleged in a military commission brief that Deputy Defense Secretary Gordon England put to lawyers how they needed to ‘think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election.’ Mizer also argued that ‘unlawful command influence’ was at play here, making it impossible for Hamdan to have something remotely resembling a fair trial.
Somewhat damningly, there was no rebuttal from the Pentagon, let alone investigation into the motives suggested by England’s statement. The case was allowed to go trial.
Notwithstanding his detention at the base, Hamdan’s life as an appellant has been colourful. His lawyers filed a habeas petition arguing that his status as prisoner of war under the Geneva Convention had to be legally determined in a court of law before he could be tried by a military convention. In 2006, the Supreme Court (Hamdan v Rumsfeld) unnerved by an attempt by the White House to exile them from the process of hearing the case, concluded that the inherent powers of the executive or an act of Congress could not be said to expressly authorize the Guantánamo Bay military commissions.
In what was a healthy slap in the face of policy makers, it was held that the Geneva Convention, as part of the ordinary laws of war, had to be enforced by the Supreme Court. The commissions had to comply with the ordinary laws of the United States and the laws of war, including the Uniform Code of Military Justice. The Defense lawyer who spearheaded the appeal, Lieutenant Commander Charles Swift suffered a career death in thanks, overlooked for promotion in discharging his brief for Hamdan.
Despite the fantastic insistence by the White House that the commissions abide by a framework of international law, mandated by the Supreme Court, the system continues to possess defects that render it incurable. The case still reeks of that fetid air of torture (what Bush has called ‘an alternative set of procedures’) and the entire process behind extracting confessions within the Gitmo system.
Evidence was admitted by the commission that would never had seen the light of day in a civilian or standard US military court, another elastic addition to the undermining of law by the Bush Administration. Allegations that the CIA had engaged in brutal conduct against Hamdan on route to detention were not heard. Crucial parts of the trial were also held in secret.
A mixed verdict doesn’t necessarily make it a just one. Nor does being a driver make one a member of a terrorist network, let alone complicit in terrorist attacks, but wobbly reasoning continues to remain the province of the illegal and specious.
BINOY KAMPMARK was a Commonwealth Scholar at Selwyn College, University of Cambridge. He can be reached at email@example.com