Funny business in Guantanamo

When OJ Simpson was tried for the murder of Nicole Brown Simpson and her friend Ronald Goldman in 1995, a very lengthy and highly publicised criminal trial was televised throughout the world. Simpson was acquitted, but submitted to a default judgment for the two "wrongful deaths" in civil court, again in full view. Salim Hamdan, Osama Bin Laden's driver, was just tried in a military court in Guantanamo although no television cameras were present to broadcast proceedings. What makes this - and forthcoming -trials a mockery of justice?

As these lines are written, the jury is deliberating before reaching a seminal verdict: even if found innocent of charges brought against him ("providing material support for terrorism and conspiracy"), Hamdan will remain incarcerated until the end of the war on terrorism. According to the defendant's military lawyer, Hamdan offered "critical details" to American forces "when it mattered most", in the early days of the war in Afghanistan. He may have helped in the hunt for Bin Laden, though secret evidence introduced in the trial did not reveal the nature of that assistance. In the event, since Bin Laden was not found, this substantiation must not have been particularly valuable.

Hamdan, a Yemeni national who was captured in Afghanistan on November 24, 2001, may well have been a driver for Bin Laden but, perhaps, he was also a personal bodyguard. He may or may not have transported weapons in his vehicle for Al Qaida even if these accusations could not be verified because testimonies presented in court were, wait for it, TOP SECRET. Indeed, military censors insisted that all evidence entered into the record were "protected" for reasons of national security, which meant that no one could question the validity of such testimony.

According to the few press reports that came out of Guantanamo, no one without a "TOP SECRET" clearance could even attend the hearing, since several witnesses testified on various interrogation "techniques" used to extricate damaging testimonies under torture. At times, the secrecy was comical, because at least one prosecution witness, Robert McFadden, an Arabic-proficient Special Agent assigned to the Naval Criminal Investigative Service, offered bizarre declarations. Hamdan allegedly admitted swearing an oath of loyalty to Bin Laden, although McFadden was the only individual to insist on the veracity of this assertion. Even worse, McFadden recollected the avowal using three different Arabic words, and it behooves one to ask whether the Yemeni outsmarted his interrogator.

Damaging affidavit

To be sure, McFadden delivered a very damaging affidavit against Hamdan, claiming "that during more than nine hours of interrogation in 2003, Mr Hamdan had said he had sworn allegiance to Mr Bin Laden". Reportedly, Hamdan had told his interrogator that he personally "was committed to jihad and its goal of 'killing Jews and Christians, expelling them from the Arabian Peninsula'."

These are terrible accusations, but they could not be cross-examined. Rather, defence attorneys chipped away at McFadden by focusing on technical matters. Was he really proficient in Arabic and was his testimony authentic? When asked to read from Arabic documents, at least in one instance, McFadden failed to point out that the text he was asked to read was presented to him upside down.

While witnesses tend to be under stress, it is critical to note that Arabic-proficient Special Agents are a rare breed, and seldom appear ridiculous. On the contrary, the few such personnel serving in most American intelligence agencies are so well trained, and are so efficient at what they do, that it would be next to impossible to present a page upside down and not have them notice.

Of course, this was a mere technicality, and the judge, Captain Keith J. Allred [US Navy], ruled that federal counter-terrorism agents could testify for the prosecution. Such clever practices prepared everyone for upcoming court cases since this first "experiment" checked permissible limits for various defence motions. Whether these tryout options would be applicable to other cases was difficult to determine but the precedents were important nonetheless. Consequently, testimonials obtained through coercion (torture), will probably be admissible.

Nevertheless, despite these extreme conditions, officers assigned to defend Hamdan managed to invite Special Forces psychologist Col. Morgan Banks and Lt. Col. Guy John Taylor, a military lawyer assigned to a Special Forces unit in Afghanistan at the time, to bear witness. Both had interesting things to say, including that Hamdan played a key role in the arrest of Abdul Rahim Al Nashiri, who allegedly was behind the 2000 attack on the destroyer USS Cole in Aden. Hamdan actually believed that he had an agreement, perhaps even a plea bargain, with prosecutors in exchange for leniency. Needless to say, officials denied this.

What are truly troubling with this trial are its closed sessions because they deny the public the transparency required to indict genuine criminals. If Hamdan is a terrorist, it should not be hard to prove it in court, after thorough cross-examination. Open sessions further mean that any verdict will be immediately trusted as having been fair whereas closed session add fuel to the mistrust fire. When Judge Allred issues his decision on various motions with entire sections blacked out for security reasons, few will have any faith in his court's objectivity.

As stated above, even if acquitted, Hamdan will remain in custody as an enemy combatant. Future trials will render severe verdicts, including death by execution, which will be impossible to halt unless the President of the United States stops these opaque trials. Sadly, none of the Guantanamo tribunals will be fair, further reinforcing the concept that justice is alien to the system.

Dr. Joseph A. Kechichian is a commentator and author of several books on Gulf affairs.