Despite a sentence that effectively means convicted
war criminal Salim Hamdan could be a free man before the end of this year,
the future of Osama bin Laden's driver is far from clear.
Hamdan was found guilty Wednesday of providing "material support"
for the al-Qaeda terrorist organization but acquitted on the more serious
charge of conspiracy that alleged he was part of the al-Qaeda effort to attack
the United States. A panel of six Pentagon-appointed military officers sentenced
the 40-year-old Yemeni to five and a half years in prison. Given credit for
the five years he has already served at the U.S. Navy's detention center at
Guantanamo Bay, Cuba, Hamdan's release date could be later this year.
But the George W. Bush administration has said it has no intention of releasing
Hamdan. Since he has been designated an "unlawful enemy combatant,"
he could be held until the end of the "war on terror." And what would
constitute that end remains undefined.
What appears clear is that, if Hamdan is to be held beyond his release date,
his attorneys will appeal to both the U.S. military and civilian court systems.
Hamdan's was the first trial held at Guantanamo in seven years, and the
first convened by the U.S. since Nazi leaders were tried at Nuremberg after
the World War Two. Government prosecutors asked for a sentence of 30 years
to life in prison for Hamdan.
In the aftermath of Hamdan's trial, human rights groups and legal scholars
voiced sharp criticism of the trial and the process through which Hamdan was
brought to trial and predicted that his legal journey was far from over.
Critics said the trial which featured secret and hearsay evidence, closed
proceedings, and the introduction of evidence obtained through coercion
was a demonstration of the flawed military commission process designed by the
"For all the government's attempts to paint the commissions as another
Nuremberg, they remain utterly outside the law and will be mired in challenges
for years to come," Vincent Warren, executive director of the Center for
Constitutional Rights, an advocacy group that has mobilized many of the defense
attorneys for Guantanamo inmates, told IPS.
"Hamdan was convicted based on laws that were passed long after he was
picked up, and the commission allowed coerced evidence both illegal
under not only international law, but U.S. law, as well," Warren stressed.
His view was echoed by Larry Cox, executive director of Amnesty International
USA. He said, "Hamdan's trial revealed what is common knowledge
the military commissions are fatally flawed and do not adhere to major aspects
of the rule of law. Hamdan suffered nearly seven years of unlawful detention,
only to face a process that falls far short. So far the trial continues the
Bush administration's efforts to escape the rule of law and the requirements
"The trial was a show trial. The rules of evidence are so tilted in the
government's favor that the tribunal is ill-designed for getting at truth,"
Brian J. Foley, visiting associate professor at Boston University law school,
"It's hard to credit any verdict, though it's telling that the executive
failed to win the entire case even in its contrived system," Foley explained,
adding, "That, however, in no way proves the system is fair or that it
But others who support the military commission system termed verdict legitimate
and fair. For example, Washington lawyer David Rivkin, a consistent supporter
of the administration's detention policies, said, "This is an enormously
compelling indication of how independent the process has been."
Deputy White House spokesman Tony Fratto described the trial as fair. He said
it would now open the way for prosecutors to proceed to try about 80 Guantanamo
detainees for war crimes. Nineteen of these have already been charged.
Wednesday's verdict and sentence will automatically be appealed to a
special military appeals court in Washington. That court can reduce, but cannot
increase, his sentence. Hamdan can then appeal to U.S. civilian courts as well.
Defense lawyers said Hamdan's rights were denied by an unfair process
crafted by Congress after several Supreme Court decisions found previous tribunal
systems in violation of U.S. and international law. They criticized the use
of interrogations as key to the government's case, saying that these were
the products of coercive tactics including sleep deprivation and solitary
"The problem is the law was specifically written after the fact to target
Mr. Hamdan," said Charles Swift, one of Hamdan's civilian lawyers. Swift
began his defense of Hamdan as a U.S. Navy officer and continued his representation
after he retired from the Navy.
Hamdan was convicted of providing material support to terrorism by driving
bin Laden around Afghanistan at the time of the 9/11 attacks. But, he said
he "needed a job" and that he merely had a "relationship of
respect" with bin Laden, as would any other employee.
He was acquitted of the far more serious charges of conspiracy to participate
in the 9/11 attacks on the U.S. and in other terrorist attacks. He was also
found not guilty on three other counts alleging he knew that his work would
be used for terrorism and that he provided surface-to-air missiles to al-Qaeda.
Hamdan has been held at Guantanamo since May 2002. The military has not said
where he would serve a sentence, but the commander of the detention center,
Navy Rear Adm. David Thomas, said last week that convicted prisoners will be
held apart from the general detainee population.
Hamdan has already become an iconic figure in American jurisprudence. It was
the lawsuit he brought against then Secretary of Defense Donald Rumsfeld in
2006 that resulted in the Supreme Court ruling that military commissions set
up by the Bush administration to try detainees at Guantanamo Bay lack "the
power to proceed because its structures and procedures violate both the Uniform
Code of Military Justice and the four Geneva Conventions signed in 1949."
Following that ruling one of several major legal setbacks for the Bush
administration Congress hastily passed the Military Commissions Act of 2006,
under which Hamdan was tried.
It is unclear why the government chose a case involving arguably the lowest-level
Guantanamo detainee as its first defendant. But legal authorities speculate
that prosecutors saw the Hamdan case as a "test run" for the military
commission structure and process.
Many of the cases yet to come to trial involve so-called "high value"
detainees, including Khalid Sheikh Mohammed, the alleged mastermind of the
9/11 attacks. His case is also far more problematic, since the Bush administration
has acknowledged that he was subjected to what it calls "enhanced interrogation
techniques," including waterboarding.
(Inter Press Service)