War Crimes Trial Begins for Detainee at Guantánamo
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 hundreds of terror 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 that 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 here, in Washington Attorney General Michael B. Mukasey called for legislation that the administration says it needs to control the scores of legal cases from terror suspects challenging their detention at Guantánamo in federal courts. Among his requests is a law barring the terror suspects from ever setting set 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 has yet 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 military 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 terrorism.
Opening statements are scheduled for Tuesday.
But Judge Allred created some 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 those statements the judge barred were those made when Mr. Hamdan was held at Bagram Air Base in Afghanistan in 2001. The judge found that Mr. Hamdan’s hands and feet were restrained 24 hours a day, that he was always alone, and that 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 evidence linking Mr. Hamdan’s access to medical care to 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 in part 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 in Guantánamo appeared to be a milestone for the Bush administration, Mr. Mukasey’s legislative proposals showed that the policy debate about Guantánamo — where 265 men are now held — remained snarled as it has been for years. The proposals are aimed at responding 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 Bush administration wanted Congress to “reaffirm” nearly seven years after the Sept. 11 terror 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 indefinitely hold men it defines as enemy combatants.
Mr. Mukasey said he was asking for reaffirmation 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. The Senate majority leader Harry Reid 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 Guantánamo detainees unless Congress set clear rules for the process.
He said all the appeals should be consolidated in a single court, probably the Federal 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, Mr. Mukasey said — 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 of charges, he said. And the proceedings should not be allowed to delay the military commission trials at Guantánamo Bay, with some 20 prisoners now facing trial on charges of war crimes and others expected to face trial 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 Bush 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 potential life term. But because of the administration’s contention 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 the potential jurors said they had personal connections to the events of Sept. 11, 2001, that prosecutors describe as a product of a sweeping conspiracy by Al Qaeda in which they say Mr. Hamdan was an enthusiastic participant.
One of the panel members 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 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. “I disagree as strongly as I could” with suspicions about military panels, he said.
One of the interview reports the judge said he was considering barring prosecutors from using included an interview at Guantánamo in which federal agents asserted that Mr. Hamdan said he had sworn an oath of loyalty to Mr. bin Laden and expressed “uncontrollable enthusiasm” for him.
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