The bizarre trial of bin Laden's bodyguard

The "capture videos" the Pentagon aims to bury, late-night brutality pointing to the CIA -- and even a surreal viewing of "The Dark Knight" here in Guantánamo.

Editor's note: Since May, staff members of Human Rights Watch have been reporting on U.S. judicial proceedings at Guantánamo for Salon.

By Julia Hall

Read more: Military, Terrorism, FBI, Politics, News, CIA, Torture, Guantánamo Bay, Guantanamo military commissions, Julia Hall

Aug. 1, 2008 | GUANTANAMO BAY, Cuba -- Given all the information about abusive interrogations that has made its way out of Guantánamo, the "surprises" over the past week in Salim Hamdan's war-crimes trial -- the first military commission convened by the U.S. government since Nuremberg -- weren't exactly earth-shattering. But that didn't stop the defense, dubbed Team Hamdan, from doing what it could here to surprise the six-member jury of military officers (plus one sub) tasked with determining Hamdan's guilt or innocence.

The defense team of four lawyers asked the jury members if they knew that Hamdan, who worked as Osama bin Laden's driver and bodyguard, was prodded out of his Guantánamo prison bed in the middle of the night and interrogated by a U.S. agency that could not be named. They asked if the jury was surprised to learn that Hamdan's boss, Abdullah Tabarak, in charge of bin Laden's security detail, including bodyguards and drivers, had himself been detained at Guantánamo Bay but was released and sent home to Morocco in 2004. And they shared with the jury video footage of Hamdan taken soon after he was captured, showing him shackled, hooded and scared, as he was badgered by a U.S. military interrogator and in obvious pain from sitting too long trussed about the legs.

Yet, through it all, it seemed that Team Hamdan could barely solicit a raised eyebrow among the jury members. Maybe such revelations would have shocked a military jury in the past. But the trampling of rights at Guantánamo Bay has so permeated the national consciousness (if not its conscience) that such abuse seems almost commonplace -- a simple byproduct of the war on terror that must be endured.

As FBI agent George Crouch, a prosecution witness, said dryly -- after learning that apparent CIA interrogations of Hamdan had taken place at night without the knowledge of FBI agents who were questioning Hamdan during the day -- "Nothing surprises me these days."

The late delivery of documents
The first hiccup in the trial occurred when the prosecution failed to deliver information the defense had requested weeks ago from the government about Hamdan's "participation" in Operation Sandman, allegedly a program to maintain discipline at Guantánamo but that was suspected to include "enhanced interrogation techniques" such as sleep deprivation. Judge Keith Allred, a Navy captain, had ordered the prosecution to provide the documents to the defense, but they trickled in at a snail's pace, some being released to Team Hamdan only the night before the trial began.

It was perhaps not surprising then that Team Hamdan's leader, Charlie Swift, a former lieutenant commander in the Navy, opened with a sarcasm-soaked contemplation of what he would have done if he'd gotten those 600 pages sooner, by way of requesting more time to analyze the documents. Swift pointed out, for example, "I would have interviewed the guards on Tango Block to determine the exact level of [Hamdan's] sleep deprivation."

The prosecution protested Team Hamdan's request for additional time, but Judge Allred granted it and showed his annoyance with the prosecution by issuing a stern reprimand to the government prosecutors. "The government is in a poor position to get indignant about anything," Allred said. "Good grief, Charlie Brown, what have you been doing?"

Say what?
Allred's irritation at the prosecution was short-lived, however, and was soon turned on the defense, which objected repeatedly to the admission of statements that constituted hearsay.

The rule against hearsay -- which excludes as evidence statements not made by the person testifying -- is a cornerstone of American criminal justice. If the accused can't directly confront the person who uttered the words in order to probe for and confirm the truth of the statement, then those words can't be used as evidence. While there are many exceptions to the basic hearsay rule, hearsay evidence generally remains prohibited.

Not so with the Guantánamo military commissions. The Military Commissions Act, passed by Congress in 2006, expressly permits hearsay evidence, provided it is "reliable" and "probative" -- a standard that renders the hearsay rule meaningless. Allred told counsel outright at the beginning of Hamdan's trial that he will accept any recognized exception to the hearsay rule and any hearsay evidence offered under the "less rigorous standard Congress has provided."

The prosecution therefore felt free to ask one witness, "Did somebody at that time tell you something of significance about the accused?" Posed in such a way, this question is the very definition of impermissible hearsay.

But Team Hamdan became so tired of objecting, to no avail, that they didn't even bother to stand for that one.

Next page: The interrogation videos that the Pentagon does not want the public to see