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Guantanamo Trial of Salim Hamdan Begins Today

Jury selection in the military commission trial of Guantanamo detainee Salim Hamdan is set to begin Monday morning.

In a nutshell: The Government has charged Hamdan, a driver for Osama bin Laden, mostly with acts that predated 9/11 by years.

The defense says his conduct did not occur "in the context of" an armed conflict, or was not "associated with" an armed conflict.

Hamdan is facing life in prison. Even if acquitted, Bush may decide to hold him indefinitely as an "enemy combatant." As to his jury:

[A]t least five military officers will make up the jury, and a two-thirds vote is required for a guilty verdict. A three-fourths votes is required for sentences that are longer than 10 years.

More...

Additional news articles on the trial: Reuters, AFP, Christian Science Monitor.

Here is a simplified factbox on the procedures.

The Department of Defense has a website for the case with numerous exhibits and transcripts. Many of the pleadings are contained in the exhibits. See, for example, this one, which is 500 pages. The Government sets forth its evidence against Hamdan on page 3-4 (paragraphs g,h,i and j.)

The defense, in opposing a motion by the prosecution to prevent it from calling an expert witness, says (pages 14 and 20):

In this case, the Prosecution seeks to impose criminal penalties on Mr. Hamdan for conduct that long pre-dated the attacks of 11 September 2001. The Defense contends that such conduct did not occur "in the context of" an armed conflict, or was not "associated with" an armed conflict.

...There is no dispute that the existence of an armed conflict is both highly relevant and necessary to this prosecution – indeed, it is a prerequisite to any conviction under the Military Commissions Act.

The Government wants to present an expert "in the field of Al Qaeda and Sunni Extremist Terrorism" named Evan Kohlman (page 44) to provide, among other things, a history of al Qaida. Kohlman's timeline of al Qaida is on page 45-47. He produced a movie called the Al-Qaeda Plan" and the proseuction is seeking to admit the film.

On page 47, the prosecution writes:

Mr. Kohlmann will testify regarding the existence of facts to establish an armed conflict with al Qaeda during the charged period. This is an element of the charged offenses. Also, Mr. Kohlmann will be needed to confront the anticipated affirmative defense of lawful combatancy. The Defense has proffered, and the Military Judge has ruled that the accused may raise the defense of lawful combatancy, with respect to the accused. Through subsequent pleadings the Defense has narrowed the issue to whether the accused was operating as a “supply contractor” to a lawful fighting force operating near the city of Kandahar specifically the Taliban or “Ansars.” The Defense will put on expert testimony that the “Ansars” were a legitimate lawful fighting force. Mr. Kohlmann’s broad knowledge of al Qaeda and the transnational jihad movement is needed to confront this assertion.

Thus, Mr. Kohlmann must also prepare to rebut the Defense that this loose group of individuals (most of which are terrorists) that comprised the “Ansars” were not lawful combatants as defined under the Geneva conventions. Mr. Kolhman will rebut Dr. Williams and his testimony during the jurisdictional hearing that may be offered during the trial on the merits and will provide expert testimony on the so-called "Ansars" and/or the so-called "55th Brigade" as well as the role of the Taliban and other transnational fighters, jihadists and other fighters.

Mr. Kolhamn will offer expert factual testimony on the nature of these groups, whether factually they meet the elements of a lawful fighting force under the law of war and their historic acts of violence and terrorism that is antithetical to a lawful fighting force.

The prosecution is also seeking to prevent a defense expert on coercive techniques from testifying (page 50.)

The Government seeks an order precluding Dr. Emily Keram, a forensic psychiatrist, from testifying “in any capacity” regarding the effects of coercive conditions and interrogation techniques on "the veracity of any pre-trial statements made by the accused."

The defense states (page 56):

The Government presumes that all Mr. Hamdan’s out-of-court statements will be admitted into evidence on the basis that the Military Judge found that the Defense had not, as of 23 April 2008, demonstrated that Mr. Hamdan's fear of death in Afghanistan remained a factor relevant to the voluntariness of Mr. Hamdan’s later statements.

The Military Judge’s ruling, however, did not effectively admit all of Mr. Hamdan’s out-of-court statements. As an initial matter, the Government has not stated that it intends to seek admission of all of Mr. Hamdan’s out-of-court statements. Certain statements that the Government has identified will be the subject of a renewed Defense motion to suppress based on coercion.

Others that the Government may seek to introduce may be challenged by the Defense at the time of the proffer At that point, the Military Judge must determine whether the statements were the product of coercion, and if so, whether they are reliable, probative, and should be admitted in the interests of justice. Mil. Comm. R. Evid. 104(a), 304©.

For more of the issues likely to arise during the trial, which is expected to last two weeks, you can scroll through the rest of the exhibits on the DOD page.

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  • Display: Sort:
    Five plus years of war... (5.00 / 1) (#10)
    by desertswine on Mon Jul 21, 2008 at 09:09:47 PM EST
    A trillion bucks down the Mideast toilet...
    Thousands of Americans dead...
    Hundreds of thousands of Iraqis dead...
    Millions of Iraqis uprooted and refugees...

    And we got Osama's chauffer.

    Watch the signpost up ahead...

    5 officers (none / 0) (#1)
    by boredmpa on Mon Jul 21, 2008 at 04:08:11 AM EST
    of how many people?

    or is it just a 5 officer minimum == jury?

    Not even the Administration. . . (none / 0) (#2)
    by LarryInNYC on Mon Jul 21, 2008 at 05:51:00 AM EST
    refers to this as a "trial".  Am I correct?  I think they refer to it as a "tribunal".

    did i miss the tribunal, (none / 0) (#3)
    by cpinva on Mon Jul 21, 2008 at 07:12:49 AM EST
    where he was determined to be an "unlawful combatant", per the requirements of the geneva conventions, or did they just skip that part?

    Armed Conflict Is A Necessary Prerequisite (none / 0) (#4)
    by john horse on Mon Jul 21, 2008 at 08:07:56 AM EST
    ...There is no dispute that the existence of an armed conflict is both highly relevant and necessary to this prosecution - indeed, it is a prerequisite to any conviction under the Military Commissions Act.

    You would think that given the questions about the fairness of the military tribunals, that the Bush administration would select a case that was stronger than this for their first trial.  I think the defense attorneys are right - the military commissions do not have jurisdiction for acts that occurred long before the existence of the armed conflict.  

    I suspect that the reason for this case going to trial is mainly political.  Had Hamdan been a driver for anyone other than Osama Bin Laden, he may not have been sent to Guantanamo.  But I guess if you can't get Bin Laden then you go after the next best thing: his chauffer, his cook or his gardener.

    Just what I was thinking.... (none / 0) (#7)
    by kdog on Mon Jul 21, 2008 at 09:03:58 AM EST
    pin it on the chauffer since you can't (or don't want to) catch the big dog.

    Parent
    Isn't this guy just a driver? (none / 0) (#5)
    by samtaylor2 on Mon Jul 21, 2008 at 08:34:08 AM EST
    Other then driving Osama around, what did this guy do?

    DAMN! (none / 0) (#6)
    by Punchy on Mon Jul 21, 2008 at 08:40:55 AM EST
    Wait a minute....so, even if he's found innocent, he stays in jail forever anyways?  

    WTF is this?  How in hell is this possible?  What is the purpose of the trial, if no matter what the verdict, he's locked up forever?

    Well, I think he's being held as an (none / 0) (#9)
    by sarcastic unnamed one on Mon Jul 21, 2008 at 12:50:05 PM EST
    enemy combatant in addition to the charges discussed here. So while he may be found innocent of these additional charges, he is still, apparently, an enemy combatant and can be held as such indefinitely.

    Now, in actuallity I think "Bush may decide to hold him indefinitely" really means "Bush may decide to hold him indefinitely - or until 1/20/2009 - whichever comes first."

    Parent

    does the name "franz kafka" (none / 0) (#8)
    by cpinva on Mon Jul 21, 2008 at 11:28:32 AM EST
    ring a bell?

    WTF is this?  How in hell is this possible?  What is the purpose of the trial, if no matter what the verdict, he's locked up forever?