First War Crimes’ Trial in 60 Years Begins, Guantanamo Detainee ‘Test’ Case

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First War Crimes’ Trial in 60 Years Begins, Guantanamo Detainee ‘Test’ Case

In an unexpected speech, Attorney General Michael B. Mukasey (left) asked Congress to resolve the procedural issues raised by the Supreme Court's June ruling that Guantanamo prisoners are entitled to habeas corpus. Sen. Patrick Leahy (D—Vt.), chair of the Senate Judiciary Committee, responded by saying he thought congressional consensus on such a complex issue seemed implausible.

OSAMA'S DRIVER: Salim Hamdan, captured in Afghanistan in November 2001 and accused of terrorism and conspiracy, faces trial this week at Guantanamo. Hamdan, Osama bin Ladin's former driver, is the first detainee to come to trial under a "military tribunal," the controversial legal process set up for trying suspected terrorists. The government sees Hamdan's trial—the first war crimes' trial since World War II—as the one that will test the process.

by Laura Major
Informify Staff Writer
July 23, 2008

A court ruling last week allows the trial to go forward while the civilian courts establish procedures to handle the habeas corpus cases resulting from the Supreme Court's decision in June. Currently there are 260 prisoners in Guantanamo, but the U.S. government has formally charged only 20 and expects to try only 60 to 80. Hamdan's case is probably the simplest of those, since he was directly associated with bin Laden and not held in secret detention facilities.

Six Military Jurors to Decide Hamdan's Fate

During the two- to three-week trial, the defense will claim that Hamdan was only a driver and mechanic. The prosecution will argue he worked with bin Laden to plan and carry out terrorist attacks.

If four of the six military jurors find Hamdan guilty, he faces life in prison. Even if acquitted of criminal charges, he might not be freed, since he can still be held as an enemy combatant.

The defense already has won a small victory. The judge in the case, Navy Capt. Keith Allred, refused to allow as evidence information obtained from Hamdan before he was brought to Guantanamo, since that evidence was coerced. Allred also...

allowed some disputed evidence
told the jurors they must be impartial
told the jurors they must presume innocence

Army Col. Lawrence Morris, the tribunal's chief prosecutor, said "We're looking at it in two veins, primarily as bringing Mr. Hamdan to justice but also we're well aware that in doing that at the individual level it provides the first opportunity to test and validate this process." (Associated Press, 7/21/08)

Attorney General Suggests Guidelines for Dealing with Habeas Cases

Meanwhile, Attorney General Michael Mukasey, spoke out in a talk delivered at the American Enterprise Institute for Public Policy Research.

He asked that Congress establish procedures for dealing with Guantanamo detainees who exercise habeas corpus—the right to appear before a federal district court judge to challenge their detention.

Mukasey said these procedures should include the following:

Do not allow enemy combatants into the United States
Avoid releasing any information about intelligence or how it is gathered.
Separate habeas proceedings trials of those accused of war crimes so they do not interfere.
Affirm that the United States is at war with al-Qaida, the Taliban and others and may detain their members as enemy combatants.
Establish that one court handle all the habeas cases.
Make clear that the detainees can use only habeas corpus to challenge their detention.

Sen. Patrick Leahy (D—Vt.), chair of the Senate Judiciary Committee, said no one had told the committee that the attorney general would be making the above speech.

In a phone interview with NPR, Leahy said, "I don't know how we'd ever get anything this complex and get the kind of consensus needed to get something passed." (NPR, 7/21/08)

Question for Readers:

Do you think the trial by military commission is the correct procedure for handling these cases?

Choosing jurors for the trial of Osama bin Laden's driver, Salim Hamdan, involves the U.S. military, judges and lawyers.

Each of the four military branches selected about 160 officers to serve as jurors—each officer must have at least a top-secret security clearance.
Judge Susan Crawford, the head of the Military Commission, reviewed the files of all the nominees.
She selected 13 officers, 10 regulars and three alternates.
Lawyers for both sides questioned the 10 regulars.
They agreed on two Army lieutenant colonels, an Army colonel, a Navy captain, an Air Force colonel and a Marine lieutenant colonel. Procedural rules require between five and 13 jurors, who are allowed to question witnesses.
Two-thirds of the jurors must agree on a guilty verdict for a conviction.

(Source: NPR, 7/21/08)

[Trial by military commission] has lower standards of justice than a normal criminal trial that a U.S. national would receive, it is discriminatory and in so doing it violates international human rights law, which says there should be no discrimination of fundamental human rights. The U.S. promotes fair trials in these human rights reports, and yet now what it is doing at Guantanamo mirrors what it is doing in other countries. Ironically the government of Cuba is singled out every year for criticism about the trials that it runs just over the fence from Guantanamo-allowing coerced evidence, precisely what now will be allowed under the Military Commissions Act.