By Jerry Markon
Washington Post Staff Writer
Thursday, August 7, 2008
GUANTANAMO BAY, Cuba, Aug. 6 -- A military jury on Wednesday found a former driver for Osama bin Laden guilty of supporting terrorism but not of conspiring in terrorist attacks, handing the Bush administration a partial victory in the first U.S. war crimes trial in a half a century.
The verdict, reached after about eight hours of deliberations over three days, only intensified the debate over whether Salim Ahmed Hamdan's conviction was preordained in an unfair system -- or whether military trials are appropriate for people accused of committing heinous acts against the United States.
The administration seized on the acquittal to defend its military justice system against accusations that it was politicized and drawn up to ensure convictions. Pentagon and White House officials said they are satisfied with the result.
"We're pleased that Salim Hamdan received a fair trial," White House spokesman Tony Fratto said. "The military commission system is a fair and appropriate legal process for prosecuting detainees."
Despite the partial acquittal, Hamdan still faces a maximum sentence of life in prison. Jurors are to reconvene Thursday to determine his sentence.
With the conclusion of the trial -- the first by military commission since the end of World War II -- U.S. prosecutors can move ahead with military trials for up to 80 Guantanamo Bay detainees, including those accused of planning the attacks on the World Trade Center and the Pentagon. One reason Hamdan, who even the military judge labeled "a small player," was tried first is so the system could be tested on him.
The military jury of five men and one woman found Hamdan guilty of supporting al-Qaeda by driving and guarding bin Laden and ferrying weapons for the terrorist group.
Hamdan, a Yemeni father of two, bowed his head and wiped his eyes with his white headdress as the verdict was read.
The judge, Navy Capt. Keith J. Allred, called it "an emotional moment" for Hamdan, who was later led back to his cell at the U.S. detention facility here, his home for the past six years.
President Bush first empowered the commissions after the attacks of Sept. 11, 2001, reversing a tradition of trying alleged terrorists in civilian courts in an effort to seek swift and tough-minded military justice. The process had experienced legal, procedural and diplomatic delays.
Deputy defense counsel Michael Berrigan called the trial a "travesty" but said the defense team "is not at all unhappy with the results."
Ben Wizner, a lawyer with the American Civil Liberties Union who attended the trial as one of several human rights observers, ridiculed the administration for inaugurating the military system on "a marginal figure."
Even the prosecution's own evidence portrayed Hamdan as someone who ferried weapons for al-Qaeda and knew details of terrorist attacks, but only after they occurred and often based on conversations he overheard. One FBI agent testified that Hamdan emerged from training at an al-Qaeda camp and said he had no interest in fighting.
"We were told that Guantanamo was necessary because these were the world's most dangerous terrorists," said Wizner, who criticized the Pentagon for revealing little about U.S. interrogation techniques. "Salim Hamdan is not one of the world's most dangerous terrorists."
Col. Lawrence Morris, the military commissions' chief prosecutor, countered that the two-week trial was "extraordinarily fair, open and just" and that Hamdan is "a career al-Qaeda warrior, pledged to ensuring the personal security of Osama bin Laden."
A two-thirds vote -- four of the six jurors -- was required for conviction, but the exact vote was not released. Prosecutors declined a request to interview panel members.
The broadly worded material-support charge was easier for prosecutors because it required them to prove only that Hamdan knew al-Qaeda was a terrorist group yet helped it anyway. Conspiracy was more difficult because it required proof that Hamdan agreed to support terrorist acts -- a specific intent.
After the verdict, the jury convened a separate sentencing hearing. Prosecutors said they would present no witnesses after the judge barred their only one: an FBI agent who was injured in the Sept. 11 attacks. Allred said that testimony would "prejudice" Hamdan by "appearing to hold him responsible for 9/11" when he was not.
Legal experts said the conspiracy acquittal could bode well for Hamdan at sentencing, but he is not expected to be released because the military has separately designated him an enemy combatant. Allred also announced that over prosecutors' objections, he will give Hamdan credit for five of his years at Guantanamo Bay.
The military commission was unlike any trial the United States has seen in decades. Yet supporters and opponents agreed that Allred tried his best to be fair within the pro-government rules.
Running the proceedings with brisk efficiency, Allred declared that basic constitutional rights did not apply to Hamdan. The pool of 13 jurors was chosen by a Pentagon official but was then reduced through the customary questioning by both sides known as voir dire.
Unlike in civilian courts, incriminating statements that Hamdan made to interrogators were admitted into evidence even though he was not warned that they might be used against him.
Allred also issued a key ruling against prosecutors, throwing out additional statements from Hamdan that were deemed "highly coercive." The rules had allowed, in certain circumstances, evidence obtained under interrogation methods that were "cruel" and "inhuman."
Legal experts said the decision could put the government at a disadvantage in future military trials of al-Qaeda leaders subjected to far more coercive conditions, such as "waterboarding," a form of simulated drowning.
Air Force Col. Morris Davis, who resigned last year as the chief prosecutor for military commissions in part because he thought the process had become politicized, said he gave the trial "a mixed scorecard."
But he said he hoped the deliberation time, combined with the partial acquittal, would "dispel some of the perceptions that a military jury will just be a rubber stamp. It seemed they took it seriously, carefully considered the evidence and followed their consciences."