Goal of the Hamdan Trial: Credibility

Prosecutors Seek Decisive Conviction Of Former Driver

GUANTANAMO BAY, Cuba -- Salim Ahmed Hamdan did not want to fight.

The man who wound up chauffeuring the world's most wanted terrorist emerged from an al-Qaeda camp in 1999 unimpressed with the weapons training he had received, according to an FBI agent who testified for the prosecution at Hamdan's military trial last week.

Agent Craig Donnachie said Hamdan told him during an interrogation in 2002 that he "had no interest in fighting after completing his time" at the camp in Afghanistan.

Asked by defense lawyers whether Hamdan had committed "to engage in terrorist acts," Donnachie responded: "He did not."

But in a number of ways, that is not really the point of this historic proceeding, the first U.S. military commission since World War II. To win a conviction on charges of material support for terrorism and conspiracy, the government need not present evidence to a jury of military officers that Hamdan committed acts of violence.

Perhaps even more important to the administration, observers say, is a smoothly run, credible trial, with few theatrics, that results in an easy conviction -- even if the defendant is one of seven former drivers for Osama bin Laden.

"This is essentially a new legal system, and they are using Hamdan to work out the kinks," said Jonathan Drimmer, a former Justice Department war crimes prosecutor. "It's a guinea pig trial."

Stephen Saltzburg, a law professor at George Washington University and a former Justice Department official, said that whatever the verdict, the administration is "going to claim this is a success. It shows that there can be trials and that the process will go forward."

He said the administration is eager to get the trials underway because President Bush's successor may want to close the U.S. detention facility at Guantanamo Bay. "Is the next president going to say, 'I'm going to overturn those commissions, upset the appellate process'? I think the desire to move forward now is to avoid this being dismantled later."

For the first week at least, the government has gotten its wish, with only one minor outburst by Hamdan marring the proceedings. As testimony drew to a close Friday, the government had made progress toward portraying the defendant as a relatively low-level al-Qaeda figure, someone who knew details of terrorist attacks, but only after they occurred and often based on conversations he overheard.

"We never put a rank on him. We never suggested he was in the top 17 or the top any-teen of al-Qaeda," Col. Lawrence Morris, the chief prosecutor for military commissions, said outside the courtroom. "I don't want . . . to have anybody have us appear to be asserting that he's more responsible than he is or that he's higher-ranking than he is."

Yet prosecutors also have presented evidence that Hamdan transported weapons, guarded bin Laden and never left the terrorist leader's service even after learning about terrorist operations. That easily could secure a conviction for material support of terrorism, legal experts said.

"He is a minor player, but that absolutely does not matter legally," Drimmer said. "The prosecution seems to be effectively establishing that he knew this was a terrorist group and he nonetheless acted to support that activity, and that's what they need to prove material support."

Prosecutors also must prove that Hamdan "knew or intended" that his support was to be used for a terrorist act. Federal agents have testified that he told them he knew about specific attacks, if only after the fact and usually because he overheard conversations. Prosecutors have emphasized Hamdan's admissions that he stayed with bin Laden until November 2001, when he took his wife to Pakistan.

FBI agent George Crouch Jr. testified Friday that Hamdan "said he was coming back" to bin Laden after the trip. Before he could, he was captured in Afghanistan.

The second charge, conspiracy, may be more difficult for prosecutors because it requires proof that Hamdan agreed to support terrorist acts instead of just knowing about them.

"Conspiracy requires a specific intent," Saltzburg said. "Just because he overheard something about bin Laden engaging in a terrorist act doesn't mean that he thought his services were being used to assist."

But with a conviction, Hamdan will have served to smooth the way for trials of the higher-ranking al-Qaeda defendants to come. The government has filed charges against five accused planners of the Sept. 11, 2001, attacks and intends to charge about 80 of the approximately 265 detainees still held at the controversial U.S. military prison here. Opponents believe that the trials are essentially rigged to secure convictions and that civilian courts should be used instead. But the judge, Navy Capt. Keith J. Allred, threw out statements from Hamdan gleaned from "highly coercive" interrogation methods, and he has implored the jurors to be fair.

Several classified documents have been shown to the jury, prompting defense attorneys to say Friday that the trial has not been open. But classified evidence also is occasionally introduced in civilian terrorism trials. More than 30 journalists have covered parts of the trial, though there are few observers from the general public.

Hamdan, a Yemeni father of two who has mostly sat quietly in court, stroking his chin, faces as much as life in prison if convicted. Defense lawyers, who will probably start their case in a week, are expected to portray him as a minor driver and mechanic who was not involved in terrorism.

They have declined to characterize the strength of the prosecution's case so far but have acknowledged that it may be difficult to win an acquittal. The count of material support of terrorism especially "is a tough charge to defend against," said Michael Berrigan, the deputy chief defense counsel.

Hamdan's attorneys have argued that his statements to interrogators should be thrown out because they were obtained during coercive interrogations. And they have criticized the government for giving them hundreds of pages of documents just before trial that should have been delivered several months ago.

"The bottom line is we are not equipped, under the rules we have to operate under, to present an adequate defense," Berrigan said. "We're simply not."