July 25, 2008 – The more things change the more they stay the same. The long-awaited military trial of terror suspect Salim Hamdan, currently underway at the euphemistically-named “Camp Justice” at Guantanamo Bay, Cuba, looks from the outside to be a carbon copy of criminal conspiracy trials we see every day here in civilian courts on the mainland.
The prosecutors (here, military lawyers) are trying to pretend that Hamdan was a significant cog in the al Qaeda machine just as federal prosecutors would try to portray any organized crime foot soldier as a major player in the mob. Enzo the Baker becomes a capo. The defense, meanwhile, wants military jurors (here, military officers) to believe that Hamdan was little more than a cabbie, a guy just trying to make a buck chauffeuring clients around. Enzo the Baker in this scenario is just a baker.
The plot line so far, four days into the trial, is straight from outtakes of “The Godfather” or “Law and Order.” We are not witnessing an epochal “war crimes” trial – the first since the Twin Towers fell on September 11, 2001. We are not unwinding the al Qaeda stem. We are not at the heart of the matter. We are, instead, watching penny-ante stuff, a trial the dramatic moments of which have come mostly because Hamdan apparently doesn’t like his attorney and spars with him at the defense table.
From Hamdan’s own mouth – courtesy of interrogations that likely wouldn’t be permitted in our own justice system and which ultimately may reverse a conviction here – his jurors have learned that he identified key al Qaeda suspects and drew maps of camps and compounds. He had knowledge, clearly, but just as clearly no great urge to fight. FBI Agent Craig Donnachie told the panel Thursday that when Hamdan’s time in a “terror camp” was up, he “just wanted to return back to the guest house and work there and be with his family.”
I am no expert, of course, and supporting terrorists is supporting terrorists no matter how long you do it, but this testimony does not strike me as emblematic of the sentiments and actions of a dangerous jihadist. Speaking of which, the only true news to have emerged so far from the trial is a colossal embarrassment to the government and has nothing to do with Hamdan. Evidently, Hamdan told his interrogators years ago that they had released from Gitmo (back to Morocco) a “hard guy” terror suspect named Abdellah Tabarak. Oops. Bet the Administration would rather have Tabarak on trial than Hamdan.
But, to paraphrase the architect of the War in Iraq, you go to trial with the defendant you have, not the one you wish you had. This is why historians will note the Hamdan trial only because it was the first full-on military tribunal since the end of World War II. They will note it because of the procedural wrangling that proceeded it (Hamdan took his cause up to the U.S. Supreme Court and won) and the lengthy appellate process that is sure to follow it. Put another way, whatever role Hamdan played in the legal history of the war on terror has already been mostly played.
Still it’s mildly interesting to see whether and to what extent intelligence-gathering operations can co-exist with evolving criminal and/or military justice. The reason that the charges against Hamdan are built almost entirely from his own words, uttered in countless interrogation sessions, is that Hamdan was never advised that anything he said to his captors could be used against him. A wise policy, right? After all, the primary purpose behind such interrogations is to discover information not to build a future lawsuit.
But that policy was put in place before the Supreme Court announced last month that detainees like Hamdan will get a full appellate review following their convictions at Gitmo. It was put into place before the Court forced the White House to mesh military procedures with civilian due process rights. Apples now meet oranges and the big questions are: will the federal courts look upon the Hamdan interrogations at Gitmo as “coercive” and, if so, what will those courts do about it?
The answers don’t really matter much in Hamdan’s case. Whether he serves a life sentence or is deported back to the Middle East probably won’t make a difference in the outcome of the war on terror. But the future interrogation questions for our federal courts are hugely important in the upcoming trials of true al Qaeda leaders like Ramzi Binalshibh and Khalid Sheik Mohammed. If their cases are overturned because of the way they were interrogated well, then, that would be quite a story.
I don’t think that’s going to happen. I don’t think that any judge in America is going to toss out a conviction of an Al Qaeda terror boss. But I also didn’t think that Hamdan’s presiding judge, Captain Keith Allred, would have dismissed from the trial evidence of “coercive” interrogation sessions of Hamdan conducted in Afghanistan in 2001. Mohammed and Binalshibh were subject, remember, to certain interrogation methods in the secret prisons at which they were kept after their capture. And that’s just one reason why the government is watching the Hamdan trial far more closely than you are.
