2008 | Driver's trial made war court firsts

 

The first terrorist convicted at trial by military commission was also the first man acquitted of a war crime.

crosenberg@MiamiHerald.com

GUANTANAMO BAY NAVY BASE, Cuba -- Someone had to go first.

And so Osama bin Laden's driver, not the boss, became the first al Qaeda terrorist convicted by American military officers at the first U.S. war crimes tribunal since World War II.

But in a less-noticed footnote to the historic trial, Salim Hamdan, 40, also had another first. He was the first to be acquitted of a war crime, too.

The six U.S. military officers who sentenced him to serve the rest of the year in prison for providing material support for terror also found him not guilty of another charge: conspiracy.

Prosecutors had argued that the case against the Yemeni with a fourth-grade education was ready before the more complex trials, such as the one that seeks to execute five men who allegedly organized, financed and directed the Sept. 11, 2001 attacks.

But the jury rejected the charge that sought to hold Hamdan responsible for al Qaeda's worldwide mayhem, too.

''You don't have bin Laden, so you prosecute the driver?,'' said retired Lt. Cmdr. Charlie Swift, who championed Hamdan's case longest.

''He was such a small player,'' said the judge, Navy Capt. Keith Allred, after the verdict.

Someday perhaps Department of Defense files will explain why the government debuted its tribunal system with the trial of the driver whose lawyers fought it to the Supreme Court.

NOTABLE FIRSTS

Meanwhile, the milestone of finally finishing one full-blown trial logged a series of noteworthy firsts.

Here are a few:

• Hamdan also was the first man whose American battlefield interrogation was captured on video, says his Pentagon lawyer, Navy Lt. Cmdr. Brian Mizer.

Hamdan is shown shuffling to a crude cement building in November 2001, at times hooded -- a black-masked soldier standing with an assault rifle.

It was shown -- unclassified -- at trial. But you won't see it. The prosecution has vetoed its release in case of an appeal, a war court spokeswoman said. Allred approved its release months ago.

• He also is the first ''prisoner'' at Guantánamo, in the language of the Bush administration.

The other 264 or so enemy combatants, from former CIA captives to alleged one time small-fry foot soldiers, are ``detainees.''

Signaling his new status, guards moved him to a vacant wing in Camp 5, where his one-man cell was once on the same corridor as others.

Until another detainee is convicted, there will be no other captive to call to through the steel and cement walls or hear at prayer that echoes through the corridors.

• So, another first, the Defense Department is designing ''procedures'' to avoid what a spokesman called ``linguistic isolation.''

Hamdan will have access to the same detainee perks as others, said Navy Cmdr Jeffrey Gordon. He can use the library, where detainees do not browse the stacks but consult a U.S. government contractor who rolls a cart through the cellblocks.

Also, Hamdan will get access to a ``movie night initiative.''

A Camp 5 guard recently explained it this way: Every two weeks, a captive who complies with camp rules can arrange to see a video, alone on a small sofa in an interrogation room.

Staff say The Deadliest Catch is popular these days. It's a Discovery Channel deep-sea fishing series.

• His trial also was the first to rely on patchwork secrecy.

Two witnesses testified anonymously -- an FBI agent called Witness 1 and ''Sgt. Maj. A,'' a U.S. Army sergeant major.

Two testified in secret -- a psychologist at the Army's Special Operations Command and an Army lawyer with the U.S. Special Forces.

And two former CIA captives testified on paper that had been censored of intelligence secrets. One was an alleged 9/11 mastermind who said that, as a self-confessed terrorist, Hamdan was no terrorist.

Even Hamdan spoke to the jurors for a few moments in a secret session. Lawyers said he described an offer he made to his U.S. captors in Afghanistan. Mizer mysteriously called it a ``squandered opportunity.''

• He was the first Guantánamo detainee to successfully argue he had been abused in U.S. custody.

His lawyers persuaded the trial judge to discard evidence they got from him in Bagram, Afghanistan.

• His case afforded the first glimpse at war crimes trial of a Gulf Arab who answered a call to jihad.

Hamdan first went to Afghanistan in 1996 not to become Osama bin Laden's driver, but en route to Tajikistan, to answer a sheik's call to defend Muslims from post-Soviet oppression, a story-line likely to be repeated at future tribunals.

NEXT ON THE LIST

Next up for trial is another alleged jihadist who straddled both worlds, Toronto-born Omar Khadr whose father allegedly ran philanthropic fronts for al Qaeda and raised his sons with radical Islam teachings.

He allegedly threw a grenade that killed a Special Forces soldier in a July 2002 firefight in Afghanistan.

The Pentagon's chief war crimes prosecutor, Army Col. Lawrence Morris, acknowledged the historic nature of the Hamdan trial, and welcomed the world's scrutiny.

But he predicted that interest would wane as the Pentagon proceeded with some 80 proposed cases.

Twenty men have so far been named for trial, many of them foot soldiers, but seven whom face proposed military execution.

Some day, he said, trials at Camp Justice would become as commonplace as the journeys of the A's space shuttle.

'At some point you look and somebody asks, `Is there a space shuttle orbiting or not?', '' the colonel said. ``And you don't know anymore because it's no longer an extraordinary event.''

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