Hamdan Trial Closed for Testimony of Two Defense Witnesses

By Jerry Markon and Julie Tate
Washington Post Staff Writers
Friday, August 1, 2008

GUANTANAMO BAY, Cuba, July 31 -- The military trial of Osama bin Laden's former driver convened in a rare secret session Thursday to hear testimony from two defense witnesses that the government deemed highly classified.

Navy Capt. Keith J. Allred, the military judge, cleared the courtroom as the uniformed U.S. Army officers took the stand. Their entire testimony, other than their names and positions, was secret, though a redacted unclassified transcript is expected to be released later. The driver, Salim Ahmed Hamdan, and his attorneys were in the courtroom at the U.S. detention facility here.

The classified testimony adds a new layer of controversy to a military justice system that critics contend is essentially rigged to secure convictions. Hamdan is the defendant in the first U.S. military commission since World War II, and virtually all of the trial had been open until now. Prosecutors, who rested their case Thursday, say the commissions are a fair way to bring accused terrorists to justice.

"No court, civilian or military, has credibility when it listens to secret evidence in a closed courtroom," said Lou Fisher, author of a book about the 1942 military trial of eight accused Nazi saboteurs, six of whom were executed.

Jonathan Drimmer, a former Justice Department war crimes prosecutor, said the secrecy "is not ideal since it deprives the public of being able to make up its own mind about guilt or innocence." But he added: "It is to be expected, given the nature of the proceedings."

Prosecutors said they were trying to balance openness with national security concerns and vowed to request closed proceedings only if absolutely necessary. "It's everybody's desire for [the trials] to be as open as possible," said Col. Lawrence Morris, the military commissions' chief prosecutor.

Legal experts said secret testimony is exceedingly rare in the civilian court system. In the 2006 trial in Chicago of three men accused of laundering money for the Palestinian Islamist group Hamas, for example, a judge cleared the courtroom to allow testimony under a false name from an Israeli agent. But reporters were able to listen in a separate courtroom.

Secrecy is far more common in the military justice system. The 1942 Nazi trial was conducted entirely in secret on the fifth floor of the Justice Department building in Washington. Reporters and photographers were invited in one day to see the defendants and evidence and then swiftly removed. In today's military court system as well, witnesses frequently testify in closed session during court-martial proceedings, especially on matters of national security.

Hamdan's lawyers decried the closing of the testimony by the two officers, Lt. Col. G. John Taylor and Col. Louie Morgan Banks III, who was lead psychologist for the Army's Survival, Evasion, Resistance and Escape program at Fort Bragg, N.C. "It is my hope that the American public will someday hear Mr. Hamdan's defense," said Navy Lt. Cmdr. Brian Mizer, a lawyer for Hamdan.

The dispute came amid other testimony Thursday that was potentially damaging to Hamdan, who is accused of ferrying weapons for al-Qaeda in a terrorism conspiracy. The prosecution's final witness, Naval Criminal Investigative Service agent Robert McFadden, testified that Hamdan told him in a 2003 interrogation that he had sworn allegiance to bin Laden. McFadden also quoted the defendant as saying that he was dedicated to bin Laden's "jihad" against the West.

No other witnesses have testified that Hamdan swore allegiance to the al-Qaeda leader. Defense attorneys had sought to have Hamdan's statements thrown out, contending that the 2003 interrogation was coercive.

But Allred, who has thrown out some of Hamdan's other statements, admitted this interrogation into evidence. He wrote that there was "convincing evidence" that Hamdan's 2003 statements "were not influenced by any physical coercion."

Military officials acknowledged that they could not stop Hamdan from discussing classified information if he is ever released. Witnesses said the Yemeni defendant was flipping through a blue folder containing the secret evidence in court.

"When we decided to bring the full force of the government against Mr. Hamdan, we assumed certain risks, one of which is that some evidence might make it into the public arena," said Capt. Paula Bissonette, a spokeswoman for the Office of Military Commissions. "We certainly wouldn't be able to enforce any gag orders on a free man in Yemen."

Tate reported from Washington.

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