History > 2008 > USA > Justice > Military justice (II)

Jury Convicts Yemeni

in 2nd Guantánamo Trial

November 3, 2008
Filed at 10:09 a.m. ET
The New York Times
By THE ASSOCIATED PRESS

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- A jury of U.S. military officers announced Monday it has convicted an alleged aide to Osama bin Laden of terrorism-related charges, and he faced a possible sentence of life in prison following the second Guantanamo war crimes trial.

The voted to convict Ali Hamza al-Bahlul of Yemen of multiple counts of conspiracy, solicitation to commit murder and providing material support to terrorism following a lopsided weeklong trial in which the prisoner did not mount a defense.

Al-Bahlul, 39, showed no emotion, sitting calmly at the defense table as the verdict was read at the isolated U.S. military base in eastern Cuba.

Al-Bahlul was convicted of 17 counts of conspiracy, eight counts of solicitation to commit murder and 10 counts of providing material support for terrorism. Each count could bring life in prison.

The jury dismissed one count of conspiracy and one count of providing material support for terrorism.

Sentencing was to follow a post-trial hearing that included testimony from the father of a sailor killed in the 2000 attack on the USS Cole -- which was featured in a video that the military says al-Bahlul produced to train and inspire al-Qaida terrorists in Afghanistan.

Al-Bahlul, who was brought to Guantanamo in 2002, is the second prisoner to go through a war crimes trial under the special military commissions system. The first, former bin Laden driver Salim Hamdan, was convicted in August and sentenced to 5 1/2 years in prison.

Prosecutors say al-Bahlul acknowledged to interrogators that he was al-Qaida's media chief and made propaganda videos for bin Laden. Al-Bahlul doesn't consider his actions criminal.

In a pretrial hearing, al-Bahlul called the military tribunal a ''legal farce'' and refused to mount a defense. His Pentagon-appointed lawyer stayed silent during the trial, refusing to even answer questions from the judge.

    Jury Convicts Yemeni in 2nd Guantánamo Trial, NYT, 3.11.2008, http://www.nytimes.com/aponline/world/AP-CB-Guantanamo-Military-Trial.html

Terror Trial Nears End as Defense Rests Case

August 2, 2008
The New York Times
By WILLIAM GLABERSON

GUANTÁNAMO BAY, Cuba — Defense lawyers for Salim Hamdan, Osama bin Laden’s former driver, rested their case on Friday after less than two days, bringing testimony to a close in the first American war crimes trial since World War II.

The lawyers ended their case with written submissions from two former senior operatives of Al Qaeda held here, including Khalid Shaikh Mohammed, the self-described architect of the 2001 attacks. The statements were intended to bolster the claim that Mr. Hamdan was only a low-level employee with no involvement in terrorism.

In his submission, Mr. Mohammed, who described himself as “the executive director of 9/11,” said Mr. Hamdan, a Yemeni with a fourth-grade education, was too “primitive” to take part in planning terrorism attacks.

“He was not fit to plan or execute,” Mr. Mohammed said in answers to questions from Mr. Hamdan’s lawyers. “But he is fit to change trucks’ tires, change oil filters, wash and clean cars.”

Closing statements are scheduled for Monday, and the panel of six military officers hearing the case could begin deliberations that day.

Mr. Hamdan is charged with providing material support for terrorism and conspiracy. He faces a maximum sentence of life.

Mr. Hamdan’s lawyers presented only a brief defense, some of it in a courtroom closed because of national security rules. But during the two-week trial they tried to suggest, by cross-examining prosecution witnesses, that their client was little more than a low-wage worker.

Mr. Mohammed and Walid bin Attash, a second accused former senior Qaeda operative, answered questions submitted by defense lawyers, but said they would not voluntarily appear at the military tribunal. They are being held in the detention camp at the United States Navy base here awaiting trial on charges of coordinating the 2001 attacks.

In his responses, Mr. bin Attash, 30, said Mr. Hamdan “did not play any role in any planning.” Mr. bin Attash was a veteran mujahedeen fighter who lost part of his right leg in a battlefield accident in 1997.

American officials say that in addition to a role as a coordinator of the Sept. 11 attacks, Mr. bin Attash was the top deputy of Abd al-Rahim al-Nashiri, the chief planner of the attack on the American destroyer Cole in 2000 that killed 17 sailors.

Mr. Mohammed’s comments included a familiar tone of derision toward Americans. He wrote that anyone who thought that everyone affiliated with Al Qaeda was involved in terror attacks “is a fool.”

He portrayed Al Qaeda as a network that includes professionals as well as workers like cooks and drivers and has business operations in many parts of the world. He suggested that Americans’ understanding of the organization was simplistic.

Mr. Mohammed’s statement did not spare the feelings of Mr. Hamdan. According to the English translation of his remarks in Arabic, Mr. Mohammed wrote that Mr. Hamdan “was not a soldier, he was a driver. His nature was more primitive (Bedouin).” He added that Mr. Hamdan was only “looking for Osama bin Laden’s money.”

Because of security restrictions, the government had for many months barred defense lawyers from meeting with former senior Qaeda leaders held here. The written answers filed Friday were the product of a complex arrangement ordered by the military judge that gave the lawyers limited access to detainees who could back up Mr. Hamdan’s claim that he was not involved in terrorism.

The defense lawyers did not say whether they believed that the panel would be persuaded by the detainees’ descriptions or angered by the comments of the two men who acknowledged close ties Mr. bin Laden.

    Terror Trial Nears End as Defense Rests Case, NYT, 2.8.2008, http://www.nytimes.com/2008/08/02/us/02gitmo.html?hp

Guantanamo trial views graphic 9/11 video

Tue Jul 29, 2008
4:34am EDT
Reuters
By Randall Mikkelsen

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - Prosecutors in the trial of Osama bin Laden's driver unveiled a graphic video on Monday of the September 11 attacks and other al Qaeda operations that is likely to play a repeated role in pending war crimes cases.

The video is entitled "The Al Qaeda Plan," an echo of "The Nazi Plan" made by Oscar-winning director George Stevens as evidence in the Nuremberg war crimes trials of German leaders after World War II.

"Oh my God" was heard repeatedly as crowds watched the twin towers of the World Trade center collapse on September 11, 2001, in a vivid highlight of the movie shown over defense objections at the terrorism conspiracy trial of Salim Hamdan.

The six-member panel that will decide Hamdan's fate also saw footage of charred bodies stripped of flesh in the bombings of two U.S. embassies in Africa and the body of a U.S. soldier dragged through the streets in Somalia in 2003.

Control tower conversations with one of the doomed September 11 planes were also included.

"The Al Qaeda Plan" was made for $25,000 by terrorism consultant Evan Kohlmann for the Office of Military Commissions, which is conducting the trials of terrorism suspects at Guantanamo. Its 90 minutes of video clips depict the history of al Qaeda from its formation in 1988 through the September 11 attacks.

The commission's lead prosecutor, Col. Lawrence Morris, said the tape would be used in other trials but no decision had been made whether to use it in the trial of accused September 11 mastermind Khalid Sheikh Mohammed.

Hamdan's attorneys objected that the footage would prejudice the jury. "They're trying to terrorize the members," defense attorney Charles Swift told the court.

But prosecutors said the video helped illustrate the goals of al Qaeda training and ideology. "It is a very important part of the prosecution's case," said prosecutor Clayton Trivett.

Commission Judge Keith Allred approved the video, after first saying it would serve more to prejudice the case than to prove a point. "The planes crashing into the towers and the people screaming doesn't prove anything," he said.

A pivotal point of contention is the significance of Hamdan's role in al Qaeda. The Yemeni native was caught in November 2001 with two surface-to-air missiles in his car.

Defense attorneys say he was a lowly driver, but the prosecution has sought to portray him as a trusted bodyguard who helped bin Laden evade capture and stay alive.

The two sides have also skirmished over an expert's testimony on the laws of war. With Hamdan being tried as a war criminal under a 2006 U.S. law, the prosecution is seeking to show the United States was in a continuing armed conflict with al Qaeda well before the September 11 attacks.

Hamdan's attorneys have sought to demonstrate that the battle with al Qaeda did not reach the state of armed conflict until the September 11 attacks, which could make it harder for the prosecution to prove Hamdan's actions count as a war crime.

Separately on Monday, the Pentagon announced it had filed charges against another detainee at Guantanamo and released three from the detention center.

The Pentagon said Abdul Ghani was accused of attempted murder, material support for terrorism and conspiracy over accusations he fired rockets and planted bombs aimed at U.S.-led forces in Afghanistan in 2001 and 2002, and tried to kill an Afghani soldier in 2002.

The Pentagon said it had released three detainees -- one to Afghanistan, one to the United Arab Emirates and one to Qatar. It said more than 65 Guantanamo detainees are eligible for transfer or release subject to talks on where they will go.

    Guantanamo trial views graphic 9/11 video, NYT, 29.7.2008, http://www.reuters.com/article/newsOne/idUSN2825599820080729

Guantánamo Memo

A U.S. Trial by Its Looks, but Only So

July 29, 2008
The New York Times
By WILLIAM GLABERSON

GUANTÁNAMO BAY, Cuba — On the surface, the proceedings unfolding inside a makeshift courthouse on a hill here resemble an American trial. A judge wearing a black robe presides. There is a public gallery and a witness stand. Prosecutors present witnesses, and defense lawyers cross-examine them. Objections are made and ruled upon.

But behind the judicial routine at the first trial for a Guantánamo detainee lies a parallel universe of law and lawyers. Secret evidence held in red folders is not revealed in open court. The gallery is mostly empty, because there are no members of the public. In what would be the jury box, every occupant wears a military uniform.

In the first week of the trial of Salim Hamdan, Osama bin Laden’s driver, law enforcement officials recounted what he had said during interrogations in the years since he was detained in 2001. But it was also disclosed that some of the interrogations had been conducted in the middle of the night and by men wearing masks, and that Mr. Hamdan did not have a lawyer during those sessions, nor was he warned that he might be prosecuted.

Mr. Hamdan’s trial is, in a sense, two trials. Mr. Hamdan is being tried on accusations of conspiracy and material support of terrorism. And the Bush administration’s military commission system itself is on trial. After years of debate, protest and litigation, the legal standing of the tribunal system at Guantánamo remains a question for American courts and officials around the world.

The chief Guantánamo prosecutor, Col. Lawrence J. Morris of the Army, said this first Guantánamo tribunal was “the most just war crimes trial that anybody has ever seen.”

Matt Pollard, a legal adviser for Amnesty International who is an observer here, sees it differently. He said he was struck by a sense that the proceedings were more of a replica of a trial than a real one.

“We are within a frame of a beautiful picture,” created by the Pentagon, Mr. Pollard said. “When you’re inside that frame, everything looks nice.”

The Guantánamo legal system was intended to try “unlawful enemy combatants” caught on the post-Sept. 11 battlefield. Prosecutors say there is little room for the usual legal restrictions in interrogations intended to prevent a terrorist attack. The administration’s strategy in using the Guantánamo naval station was based on its belief that the Constitution would not apply here.

Legal challenges to that assertion are among a number of factors that have delayed the government’s efforts to conduct trials here for years.

A federal judge in Washington, James Robertson, refused a last-minute plea by Mr. Hamdan’s lawyers to stop this trial. But in his July 18 ruling, Judge Robertson said serious questions remained about the system here, calling it “startling” that evidence obtained through coercive interrogations was permitted to be used in trials.

But with the trial inaccessible to the public and no broadcast television cameras in the courtroom, reporters are the only way for the wider world to know what is happening. The Pentagon’s public relations theme has been “transparency,” yet the freedom of the press has its limits at Guantánamo.

Legal documents are often released months after they are filed with the military commission, if at all. Military officials run and attend news conferences, both for the prosecution and the defense. Reporters are accompanied by military escorts almost everywhere, including to meals and court.

The spokeswoman for the detention camp, Cmdr. Pauline Storum, said it was “standard policy to require media be escorted,” and that the military sought to provide journalists access in a way “that balances the protection of operation security with providing information.”

With few seats designated for reporters in the courtroom, the Pentagon set up closed-circuit televisions at a news media center in an old hangar. During some critical moments in the first week of testimony, the courtroom camera was pointed away from witnesses’ faces and the evidence, including documents and videotapes.

When a reporter noted that in America reporters were permitted to see witnesses and evidence, a spokeswoman for the Office of Military Commissions at the Pentagon, Maj. Gail Crawford, responded, “This is not America.”

Without explanation, the camera was soon back on the witnesses.

One after another, Federal Bureau of Investigation agents and other criminal investigators took the witness stand last week to describe damaging admissions they said Mr. Hamdan had made in interrogations, including his descriptions of attending a terror training camp and Mr. bin Laden’s preparations for attacks.

The agents acknowledged that it was official policy to deviate from their normal procedure of informing Mr. Hamdan of any constitutional rights.

One of the agents, George M. Crouch Jr., testified that he had helped arrange in June 2002 for Mr. Hamdan to call his family. Mr. Hamdan, who had been in custody for seven months and had been allowed no contact with the outside world, “was concerned that they would think he was dead,” the agent testified.

Mr. Pollard said holding someone incommunicado for months sounded like the kind of “disappearances” practiced by other countries. But in the court at Guantánamo, the reference did not cause a ripple.

The interrogations of Mr. Hamdan have caused him to sometimes think the trial is just another method of interrogation, a psychiatrist who interviewed him here testified. “He doesn’t know if this court is real,” the psychiatrist, Dr. Emily A. Keram, said.

In June, the Supreme Court ruled that detainees here had a constitutional right to challenge their detentions in federal court. Some lawyers said the ruling suggested that other parts of the Constitution, like the Fifth Amendment’s right against self-incrimination, might apply here.

That could have undercut the case against Mr. Hamdan. But the military judge, Capt. Keith J. Allred of the Navy, ruled that “the Fifth Amendment of the Constitution does not apply to protect Mr. Hamdan.”

Even so, the judge excluded some of Mr. Hamdan’s statements, saying they were given in the “highly coercive environment” of an Afghan prison. But he allowed many other statements by Mr. Hamdan to be entered as evidence, including some that defense lawyers contend were coerced. One of the F.B.I. agents, Ammar Y. Barghouty, said Mr. Hamdan seemed to realize during the interrogations that he had few options. “A drowning man will reach for a twig, and I am a drowning man,” Mr. Barghouty quoted Mr. Hamdan as saying.

Mr. Hamdan’s lawyers say appeals are likely from any conviction here, setting the stage for rulings, perhaps years from now, about whether the courts here meet American standards.

However the American courts eventually sort out the Guantánamo legal claims, the trial here is proceeding with its own idiosyncrasies. A prosecution witness presented an organizational table of Al Qaeda’s leadership from when Mr. Hamdan was part of Mr. bin Laden’s security detail. The chart included an entry for the head of the detail, a Moroccan, Abdellah Tabarak, who himself was held at Guantánamo. He was released in 2004, four years before the start of Mr. Hamdan’s trial.

Asked about the unusual circumstance that an employee was on trial while a man who may have been his boss had been released, a Pentagon spokesman, Cmdr. Jeffrey D. Gordon, said, “The transfer of detainees takes various factors into consideration,” including a receiving country’s promise “to mitigate the threat.”

Ben Wizner, an American Civil Liberties Union lawyer who is an observer here, said the experiences of Mr. Tabarak and Mr. Hamdan seemed to underscore the contradictions of the legal system here.

Mr. Wizner said there was a more fundamental contradiction underlying the trial. The Bush administration insists that even if a detainee is acquitted, officials could hold him indefinitely.

“Where else in the world,” Mr. Wizner said after court one day, “is someone being prosecuted for a crime who is already serving a life sentence and will continue to serve one if he’s acquitted?”

    A U.S. Trial by Its Looks, but Only So, NYT, 29.7.2008, http://www.nytimes.com/2008/07/29/us/29gitmo.html?hp

Bin Laden happy with September 11 toll, war court told

Wed Jul 23, 2008
1:58pm EDT
Reuters
By Jim Loney

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - Osama bin Laden's driver overheard the al Qaeda leader saying he was happy about the death toll in the September 11 attacks and thought the hijacked plane that crashed in Pennsylvania was shot down, according to one of the driver's interrogators.

The evidence by Ali Soufan, a former FBI agent, was meant to support the case by prosecutors at the Guantanamo Bay war crimes tribunal that the driver, Salim Hamdan, was close to al Qaeda's leadership.

Hamdan, a Yemeni father of two with a fourth-grade education, is the first Guantanamo prisoner to face trial before the controversial tribunal at the remote base on Cuba. He faces life in prison if convicted.

"Bin Laden was happy about the results and he (Hamdan) heard bin Laden say he didn't expect the operation to be that successful," said Ali Soufan, a former FBI agent. "He only thought 1,000 to 1,500 people would perish so he was happy with the results."

Soufan also said Hamdan told him about a conversation he overheard when he was driving bin Laden and his deputy, Ayman al-Zawahiri, after the attacks that killed nearly 3,000 people in New York, Washington and Pennsylvania.

The two men were looking at a magazine which described the flight routes of the September 11 hijacked planes, Soufan said.

"If they didn't shoot that fourth plane it would have hit the dome," Soufan said bin Laden told Zawahiri, according to Hamdan's account.

"I assumed ('the dome' meant) either Congress or the White House," Soufan said. "Hamdan said he did not know what they mean by the dome."

United Airlines Flight 93 crashed in a Pennsylvania field. U.S. officials have never said it was shot down but there was speculation about the issue at the time.

MARRIAGE ADVICE

Describing the relationship between the driver and the al Qaeda leader, Soufan said bin Laden had given Hamdan some marriage advice, suggesting he go back to Yemen and find a women from a "pious religious family," and when Hamdan returned with a wife, bin Laden held a feast in celebration.

"It shows a close relationship, an affinity," he said.

Hamdan is being tried in a court for terrorism suspects created by the Bush administration after the September 11 attacks. His innocence or guilt will be decided by a jury of U.S. military officers who are fighting the war on terrorism.

The tribunal system has been loudly criticized as unfair by human rights groups and defense lawyers.

Prosecutors have portrayed Hamdan as a driver and bodyguard for the fugitive al Qaeda leader who had access to the Islamic militant group's inner circle. Defense lawyers say he was just a hired hand in the motor pool who never joined al Qaeda.

On the third day of trial, Soufan, a prosecution witness who interrogated Hamdan, said bin Laden knew the September 11 hijackers and spoke highly of them.

"He praised them and their courage and he asked God to accept them as martyrs," Soufan told the six-member jury.

Hamdan was able to identify some of the top al Qaeda leaders in photographs and a suicide bomber who struck the guided missile destroyer USS Cole in Yemen in 2000.

Prosecutors showed jurors a series of videos and pictures. Soufan identified bin Laden and Hamdan standing together.

In one, Hamdan was carrying a machine gun.

"Who gets to be that close to Osama bin Laden?" prosecutor John Murphy asked.

"People he trusts ... with his life, it appears," Soufan said.

(Editing by Michael Christie and David Storey)

    Bin Laden happy with September 11 toll, war court told, R, 23.7.2008, http://www.reuters.com/article/newsOne/idUSN2230096620080723

Military Trial Begins

for Guantánamo Detainee

July 22, 2008
The New York Times
By WILLIAM GLABERSON and ERIC LICHTBLAU

GUANTÁNAMO BAY, Cuba — In a hushed courtroom here on Monday, a military judge opened the first American war crimes trial since World War II, culminating a nearly seven-year effort by the Bush administration to try some of the hundreds of terrorism suspects held in the detention camp.

At a few minutes after 9 a.m. in an improvised courthouse under the simmering sun, a military judge uttered words the Bush administration has been working toward through a tangle of legal and practical obstacles: “We will proceed to trial. This military commission will come to order in the case of Salim Ahmed Hamdan.”

Even as Mr. Hamdan, Osama bin Laden’s former driver, faced trial, Attorney General Michael B. Mukasey, in Washington, called for legislation the administration says it needs to control the scores of legal cases from terrorism suspects challenging their detention at the Guantánamo Bay Naval Base in federal courts. Among his requests is a law barring the suspects from ever setting foot in the United States because of the “extraordinary risk” they pose.

Mr. Mukasey’s speech reflected the administration’s difficulty in dealing with Guantánamo, which has become a magnet for international criticism, partly because no detainee had been tried for any offense.

As Mr. Hamdan’s trial began, the military judge, Capt. Keith J. Allred of the Navy, quickly seated a panel of six senior military officers to act as a jury. The military panel was one of a number of stark differences between the proceedings here and those in American courts, where, critics have argued, civilian jurors would not be members of the same armed forces that are running the accused man’s trial.

Mr. Hamdan, a Yemeni, pleaded not guilty to charges of taking part in a conspiracy by Al Qaeda and providing material support for ism.

Opening statements are scheduled for Tuesday.

Judge Allred created last-minute uncertainty when he ruled against prosecutors and decided to bar them from introducing as evidence some of the confessions Mr. Hamdan made in the six years he has been held.

Among the barred statements were those made when Mr. Hamdan was held at Bagram Air Base in Afghanistan in 2001. The judge found Mr. Hamdan’s hands and feet were restrained 24 hours a day, he was always alone and a soldier put his knee in Mr. Hamdan’s back and demanded that he “speak.”

But Judge Allred declined a defense motion that suspects held at Guantánamo had a broad right against self-incrimination.

As a result, he said the military prosecutors could introduce some statements Mr. Hamdan made at Guantánamo. The judge rejected a defense assertion that Guantánamo was inherently coercive, ruling, for example, that he found no evident linkage between Mr. Hamdan’s access to medical care and his willingness to cooperate with interrogators.

The “apparent correlation,” Judge Allred wrote, was “not a sinister attempt at coercion, but the natural consequence of agents seeking to help detainees in order to build rapport.”

Critics have long asserted that the military commission system was designed partly to permit prosecutors to use confessions obtained through coercion and without giving detainees any opportunity to assert a right against self-incrimination, as they might if they were prosecuted by civilian authorities.

But if the seating of the panel members at Guantánamo appeared to be a milestone for the administration, Mr. Mukasey’s legislative proposals showed that the policy debate about Guantánamo — where 265 men are now held — remained snarled. The proposals were intended as a response to a Supreme Court ruling in June that granted detainees the right to contest their detentions in federal court.

As part of a six-point initiative, Mr. Mukasey said the administration wanted Congress to “reaffirm” nearly seven years after the Sept. 11 attacks that the United States “remains engaged in an armed conflict with Al Qaeda.”

The administration used Congress’s original affirmation of an armed conflict, three days after the Sept. 11 attacks, not only to invade Afghanistan and to conduct wiretaps on Americans without a court warrant, but also to hold men it defines as enemy combatants indefinitely.

Mr. Mukasey said he was asking for reaffirmation of the government’s authority to detain enemy combatants.

“I am suggesting that it would do all of us good to have that principle reaffirmed,” he said, “not that the principle itself is in doubt.”

Democrats and civil liberties groups said the proposal was unnecessary. Senator Harry Reid, the majority leader, said in response to Mr. Mukasey’s speech that “the courts are well equipped to handle this situation, and there is no danger that any detainee will be released in the meantime.”

But in calling for Congressional action, Mr. Mukasey said the federal courts would become clogged with inconsistent and unwieldy appeals from the detainees unless Congress set clear rules for the process.

He said all the appeals should be consolidated in a single court, probably the District Court in Washington. Prisoners should not be allowed to physically attend the appeals hearings in the United States, he said.

Rather, Mr. Mukasey said, they could view the proceedings from a secure video link from Guantánamo Bay — a comment that appeared to signal that the administration plans to keep the base open for the time being.

The courts should also not be allowed to release a prisoner into the United States if he is cleared, Mr. Mukasey said. And the proceedings should not be allowed to delay the military commission trials at Guantánamo Bay, with some 20 prisoners now facing trial for war crimes and others expected later. Only after those trials are completed should prisoners be able to appeal their detentions to the civilian courts, the attorney general said.

Mr. Mukasey’s proposals dealt mainly with the cases brought by detainees to contest the administration’s determination that they are unlawful enemy combatants.

Mr. Hamdan’s case, as both sides acknowledged, did not focus on that determination, but instead on whether he violated the international law of war. Prosecutors assert that he was not only Mr. bin Laden’s driver, but also part of an elite bodyguard force and an arms courier for Al Qaeda. They said he was captured in Afghanistan in 2001 with shoulder-fired missiles that could only have been meant for American aircraft.

If convicted, he could face a possible life term. But because of the administration’s claim that it can hold unlawful enemy combatants indefinitely, even an acquittal would not mean release. It would simply mean he would return to his status as a detainee being held indefinitely — until, according the administration, the end of the war of terrorism.

Mr. Hamdan’s lawyers, some of whom have worked on his case for years, describe him as a low-level employee with a fourth-grade education who was little more than a powerful man’s subordinate.

The selection of the panel of six members and one alternate at times sounded like jury selection in an American civilian court. Lawyers on both sides and Judge Allred asked a sprinkling of questions about such issues as whether the panel members could follow instructions from the judge.

Half of the potential jurors said they had personal connections to the events of Sept. 11, 2001, which prosecutors described as a product of the sweeping Qaeda conspiracy in which they say Mr. Hamdan was an enthusiastic participant.

One panel member who was selected, an Army colonel, said she had been anxious that day because her college roommate was at the Pentagon.

Another, an Army pilot, said he had been later deployed to Iraq and had been attacked by ground fire there. When Mr. Hamdan’s military lawyer, Lt. Cmdr. Brian L. Mizer, asked what the impact might be on the pilot’s ability to judge the case fairly, the pilot answered, “I’m not sure of the answer to that, sir.”

Aaron Zisser, an observer at Guantánamo for Human Rights First, said he had found the selection of the panel members troubling. American federal courts, he said, “are equipped to address both national security concerns and the fundamental rights of the accused.”

But the chief military prosecutor, Lawrence J. Morris of the Army, said he had confidence in the independence of the military panel members.

One interview report the judge was considering barring prosecutors from using included an interview at Guantánamo in which federal agents said Mr. Hamdan said he had sworn an oath of loyalty to Mr. bin Laden and expressed “uncontrollable enthusiasm” for him.
 

William Glaberson reported from Guantánamo Bay, and Eric Lichtblau from Washington.

    Military Trial Begins for Guantánamo Detainee, NYT, 22.7.2008, http://www.nytimes.com/2008/07/22/washington/22detain.html

Rulings Clear Military Trial of a Detainee

July 18, 2008
The New York Times
By SCOTT SHANE and WILLIAM GLABERSON

WASHINGTON — Court rulings on Thursday cleared the way for the first trial at the American detention camp in Guantánamo Bay, Cuba, opened in 2002 to hold suspects captured in the campaign against terrorism.

The trials have been delayed for years, in part by courts that found legal fault with the commissions created to try people designated by the government as “unlawful enemy combatants.”

The rulings in Washington and in Guantánamo Bay rebuffed last-minute pleas by lawyers for Salim Hamdan, Osama bin Laden’s former driver who is accused of being a member of Al Qaeda.

Judge James Robertson, of the Federal District Court in Washington, ruled that Mr. Hamdan’s claims that the military commission he faces is unconstitutional can be appealed to a civilian court only after his military trial is over. In a parallel proceeding at Guantánamo, a military judge, Captain Keith J. Allred, rejected similar arguments.

After the rulings, the chief military prosecutor at Guantánamo, Col. Lawrence J. Morris of the Army, said prosecutors were “pleased by the court’s ruling and we’re ready to go to work.”

Defense lawyers had hoped that the Supreme Court ruling last month in Boumediene v. Bush, upholding the right of Guantánamo prisoners to challenge their detention in court, might sway Judge Robertson to halt the military trial.

Court officials at Guantánamo said they were planning on Saturday to assemble a panel of military officers — a military style of jury — to hear the Hamdan trial, which could begin Monday.

Colonel Morris called Mr. Hamdan’s case an important test of the military commission system and said trials for others among the 20 detainees already charged would now move quickly. He predicted that the unfamiliarity of military commissions would quickly wear off, comparing them to space shuttle flights that once riveted public attention but became so routine that they drew only modest interest.

It was Judge Robertson who ruled in 2004 that the original procedures set for military commissions by President Bush were inadequate, a finding upheld by the Supreme Court. In response, Congress in 2006 passed the Military Commissions Act, setting up new procedures for the trials.

On Thursday, Judge Robertson said the Congressional action was sufficient to let the trial begin. “Hamdan is to face a military commission designed by Congress under guidelines laid down by the Supreme Court,” he said. He suggested that serious constitutional questions about the military commissions remain, but that they would have to be considered on appeal after his trial.

The ruling came after two hours of arguments from Mr. Hamdan’s lawyers, Neal Katyal and Joseph M. McMillan, and a deputy assistant attorney general, John C. O’Quinn.

Mr. Hamdan’s lawyers argued that to proceed with the military trial now would irreparably injure Mr. Hamdan, because the “rulebook” governing such novel trials was uncertain and because testimony based on hearsay and coercive interrogation methods would be allowed.

“At a minimum, Mr. Hamdan deserves his day in court — this court,” Mr. Katyal said.

Mr. O’Quinn replied that the rulebook for the military trials was laid out in the law passed by Congress, and that any challenge from Mr. Hamdan should come only after his trial is over.

“It doesn’t make sense for this court to jump in,” Mr. O’Quinn said. He said the military commissions as refigured by Congress include “robust procedural protections.”

Mr. Hamdan faces charges of conspiracy and providing material support for terrorism.

At Guantánamo, meanwhile, Judge Allred, the military judge, appeared to acknowledge in a ruling on Wednesday that the Supreme Court’s Boumediene decision gave detainees a right to raise constitutional questions in the military courts. But in rulings on Wednesday and Thursday, he rejected the specific claims defense lawyers had raised: that the charges against Mr. Hamdan were unconstitutional because they were based on a law enacted after he was in custody and because the military commission law treats foreigners like him differently from American citizens.

Judge Allred noted in his written ruling on Thursday that the military commission trials afforded detainees many legal protections, including legal representation, a public trial and the right to be found guilty only by evidence beyond a reasonable doubt.

“In light of this substantial array of privileges and protections accorded to Mr. Hamdan,” he wrote, “the commission does not find that the Equal Protection Clause needs to apply at Guantánamo Bay to prevent injustice.”

The Guantánamo proceedings were unfolding as Congress continued to review Bush administration policies on interrogation. At a hearing on Thursday before the House Judiciary Committee, former Attorney General John Ashcroft rejected repeated suggestions from Democrats that the methods approved by the Justice Department constituted torture.

“I don’t know of any acts of torture that have been committed,” he said, adding that all the techniques fell within legally approved guidelines, including waterboarding, in which water is poured into the mouth and nose to produce a feeling of drowning.

Mr. Ashcroft acknowledged that he had approved a controversial memorandum from the Office of Legal Counsel at the Justice Department in August 2002 that set exceedingly broad limits for acceptable tactics. He said he was persuaded to approve the withdrawal of the memorandum two years later when senior department officials found the original legal rationale inadequate.

He pointed to the decision as an example of robust debate yielding an improved policy. “That’s the way the system ought to work,” Mr. Ashcroft said.

Committee members noted that Abu Zubaydah, the first major Qaeda figure captured by the Central Intelligence Agency, was subjected to harsh interrogation methods weeks before the Aug. 1, 2002, legal opinion was issued.

Mr. Ashcroft said he had no recollection of any earlier memorandum or of approving the methods himself, leaving uncertain what legal approval was given for waterboarding and other such methods before that date.

A recent account by ABC News reported that in a high-level meeting in 2002, Mr. Ashcroft raised questions about harsh interrogations, saying, “History will not judge this kindly.”

Mr. Ashcroft declined to confirm or deny whether he had said such a thing, noting that such discussions would have been classified. “This town leaks like a sieve,” he said. “I think the easiest job in the world would be to be a spy against America.”

Scott Shane reported from Washington, and William Glaberson from Guantánamo Bay, Cuba. Eric Lichtblau contributed reporting from Washington.

    Rulings Clear Military Trial of a Detainee, NYT, 18.7.2008, http://www.nytimes.com/2008/07/18/washington/18detain.html