After a two-week trial—all of it closed to the public, most of it closed to the press, and a good deal of it based on statements by witnesses the prosecutors would not allow to be cross-examined or even present in court—five colonels and a Navy captain have convicted Salim Ahmed Hamdan of having been Osama bin Laden’s driver. They sentenced him to 66 months in prison, five months longer than the trial judge earlier announced he would receive as time-served.
Salim Ahmed Hamdan has been in custody since he was taken prisoner in Afghanistan in November 2001, which is 80 months ago, so 15 months of his prisoner time did not count in the time-served accounting. It no doubt counted for Hamdan and his family.
The Guantánamo trial process is one in which the accused has no right to confront accusers and witnesses. Hearsay evidence is admitted. Evidence obtained by coercion is admitted. Judges can exclude evidence obtained by methods they can’t stomach—which apparently happened in this case—but they don’t have to. Nothing close to it would be permitted in any court in the United States, though it would be adored by rulers of the worst and most brutal totalitarian systems. It is a system designed to produce convictions, not justice. It is the system favored and established by George W. Bush, Dick Cheney, John Woo and their associates, who had little difficulty getting it through a compliant Congress.
The US government brought two charges against Hamdan. The military jury acquitted him of both counts of the more serious charge—that he was part of a conspiracy with al Qaeda leaders and therefore shared responsibility for the 2001 and other terror attacks, and that he conspired in 2001 to kill Americans in Afghanistan with shoulder-fired missiles.
He was convicted only of having been bin Laden’s driver, having been a member of Al Qaeda and of “knowing its goals.” This is the first time in U.S. history that a chauffeur with no demonstrable responsibility for anything except getting his boss to the place on time has been tried and convicted by a military tribunal for anything at all. Several commentators have pointed out that Hitler’s chauffeur and bodyguard— SS-Sturmbannführer (major) Erich Kempka—was held for a time as a witness in the trials of other Nazis, but was never himself charged at Nuremburg or anywhere else.
The limited verdict and the short sentence were a rebuke to the prosecutors, who asked for a sentence on the chauffeuring charge of 30 years to life, and by extension the Bush administration, which had much of its Guantánamo macho riding on this trial. Afterward, the prosecutors tried to put a good face on it by saying it was a wonderful illustration of this new system of justice at work. It was nothing of the sort. It was an abomination, a parody of justice, a judicial farce in which some people tried to act decently in spite of a structure that made that nearly impossible.
There was, apparently, no evidence that Hamdan had anything to do with the September 11 attacks or even knew anything about them until after they happened. Surely the government prosecutors knew the weakness of their case going in, and that is, presumably, why they added the chauffeuring charge two years after the initial conspiracy charges were set. Even so, why they would spend so much time and money pushing a charge they had to have known was flimsy? Perhaps they assumed that the six military jurors would be more interested in protecting their careers than in protecting their honor or serving justice. Those jurors surely knew of the ruined careers of military attorneys who had fought for the Constitutional rights of Guantánamo prisoners previously. If that was their assumption, the prosecutors blundered seriously.
Almost all the evidence against Hamdan was apparently derived from his own statements during 40 separate interrogations, some of them lasting for days. I write “apparently” because what Hamdan said was one of the things kept secret in the name of “national security.”
That begs two questions: In secret from whom? And why?
Other than what has happened to him since he was taken prisoner and brought by the Americans to the offshore gulag in Cuba, Hamdan knows nothing his employers didn’t know as of the date of his arrest almost seven years ago. Indeed, one of the reasons the serious charges against him were thrown out was because the prosecutors couldn’t convince the jurors he knew anything of the sort.
He’s been isolated, harassed and, in all likelihood, tortured by his US captors for years. His former employers have to assume that he has by now spilled everything he knew, that he has, like Lenny Bruce’s guy on the table next to the prisoner getting the hot lead enema, even made up things to get the torturers to back off.
Salim Ahmed Hamdan has no secrets to reveal about Osama bin Laden and his associates. The only thing Salim Ahmed Hamdan knows that Osama doesn’t know is the thing you and I don’t know either: what Bush’s interrogators did to him in their closed prison on that island. The secret things Salim Ahmed Hamdan knows aren’t secrets about al Qaeda; they’re secrets about the things done by the United States government.
If you’re old enough, this may have a familiar ring to it. During and for some time after the Tet Offensive in Vietnam in 1968, the U.S. Department of Defense listed casualties among the US and its allies, but it refused to release reports on casualties suffered by the NLF. Those numbers were unambiguous: all they had to do was count the bodies on the ground. But that information, the Department of Defense said, was classified. The questions then, as now, were: classified from whom? And why? The NLF knew how many people they sent out and they knew how many came back and they were capable of subtraction, so they knew exactly what their casualties were. The only people who didn’t know were the Americans and their allies. The Defense Department wasn’t hiding the Tet tallies from our ostensible enemies but from us.
What happened to Salim Ahmed Hamdan is hardly the only thing the Bush White House has active tried to keep us from learning. It has banished photographers who let their newspapers publish photographs of dead GIs. It has banned press coverage and photography of returning coffins. It has prevented press coverage of military funerals even when the families of slain GIs wanted the press there. We still don’t know the names of the oil industry officials Vice President Cheney met with his first year in office, just before this administration formulated its oil policy. This is an administration full of secret things, things it doesn’t want you to know, to see, to hear.
Perhaps the only decent part of the farce that was the Guantánamo Gulag trial of Salim Ahmed Hamdan occurred at the very end, after the sentence had been read and just before Hamdan was taken to wherever they are going to warehouse him while they figure out what they’ll do with and to him next. He’s only got a few months to do on this sentence but the Bush administration has insisted all along that he’s a dangerous enemy combatant, a class of people it insists have virtually no legal rights who can be kept locked up as long as the US is engaged in whatever it considers a war against terror going on anywhere in the world. Will he flatten out his time in December and go home or will he be kept on ice until the US gets a president who believes in the rule of law and is willing to act accordingly?
“Mr. Hamdan,” the judge said, “I hope the day comes that you are able to return to your wife and daughters and your country.”
“Inshallah,” Hamdan replied. An interpreter translated the Arabic: “God willing.”
“Inshallah,” the judge responded.
BRUCE JACKSON edits the web journal BuffaloReport.com. His most recent books ares The Story is True: The Art and Meaning of Telling Stories (Temple University Press) and Cummins Wide: Photographs from the Arkansas Penitentiary (Center for Documentary Studies and Center Working Papers).