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Hamdan's case sets stage for showcase trials

A credibility boost for the system may help with 'high-value' cases.

August 08, 2008|David G. Savage | Times Staff Writer

WASHINGTON — From the start, the military trial of Salim Ahmed Hamdan had the makings of a mock trial, an exercise in testing the system.

Hamdan, a former driver for Osama bin Laden, hardly fit the profile of a major war criminal. And for him, the stakes were low. He had been held at Guantanamo Bay for six years, and Bush administration officials said they would continue to hold him, whether he was convicted or acquitted.

But this week's verdict -- a partial conviction and a light sentence -- may inject some much needed credibility into the administration's heavily criticized system of military commissions. Such a boost could help the White House reach an even more important goal: trials by year's end for Khalid Shaikh Mohammed and others who are accused of plotting the Sept. 11 attacks or of leading Al Qaeda.

"A big part of this [Hamdan] case has been gearing up for the trials of the 'high-value detainees,' " said David B. Rivkin Jr., a Washington lawyer and Bush administration defender. "Nobody will say they are small fry. And in each of those cases, the government will be seeking the death penalty."

After years of legal missteps at Guantanamo, the administration had much riding on whether Hamdan's trial was considered fair. Contrary to widespread expectations, the military officers who served as jury and judge in Hamdan's case did not act as a rubber stamp for the Pentagon. They acquitted Hamdan of a more serious charge, conspiracy, while convicting him only of providing support to Al Qeada.

The jury gave Hamdan a sentence five months longer than the time he has been credited with serving at Guantanamo.

Even sharp critics of the administration saw some good signs in this result.

"This was a case of a fair-minded panel of military officers operating in a fundamentally unfair system," said Jennifer Daskal, a lawyer for Human Rights Watch, a Washington-based advocacy group. "The fact that the military officers performed their duties conscientiously does not make fair a system which allows the use of coerced evidence, is designed to cover up abuse and disregards basic due-process protections."

Rivkin said the outcome in this first Guantanamo trial should quiet the critics. "If this isn't enough to validate the commissions against the strident and unfair criticism, I don't what would be," he said. "This was fair, legitimate and comported with due process."

Rivkin noted that John Walker Lindh, the Marin County teenager who went to Afghanistan and fought with the Taliban, got 20 years after he pleaded guilty in a federal civilian court.

White House spokesman Tony Fratto appeared to acknowledge that the partial setback for Hamdan's prosecutors amounted to a victory of sorts for the administration. Noting Hamdan's conviction on the "material support" charge, Fratto this week said: "The military commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests. We look forward to other cases moving forward to trial."

Lawyers who have followed the Guantanamo cases say Hamdan's conviction sets the stage for the main act: the trial of Mohammed, the self-described mastermind of the Sept. 11 attacks.

Administration officials have long hoped that before President Bush leaves office, they can put Mohammed on trial and win a death sentence for him and four men accused as his confederates who are also held at Guantanamo.

But time is running short.

The man known in security parlance as KSM was captured in Pakistan in 2003 and pressed for information in a secret prison. In 2006 the administration moved him to Guantanamo, with the goal of trying him on capital charges.

That fall, the administration also pressed the outgoing Republican-controlled Congress to adopt the Military Commissions Act, the law empowering the tribunal to try terrorism suspects at Guantanamo. It had the effect of overturning a Supreme Court ruling in June, which had struck down a Pentagon system for handling terrorism cases.

The high court ruling came in the case of Hamdan vs. Bush. But Hamdan's victory only served to put him first in line when the reauthorized military trials got underway.

Next to be tried is Omar Khadr, a Canadian who was captured at age 15 and who faces charges of throwing a grenade that killed a U.S. soldier in Afghanistan in 2002. His trial is to begin Oct. 8.

The Mohammed trial, however, is likely to bring to the forefront the troubling issues of torture and harsh interrogations using the simulated-drowning technique known as waterboarding.

"If KSM is brought before a military commission, the entire focus of the world's attention will be on the problems and the unfairness of the system," said Daskal of Human Rights Watch. "Not on his crimes."


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