In Detainee Trial,
System Is Tested
By WILLIAM GLABERSON
Published: July 29, 2008
GUANTÁNAMO BAY, Cuba — On the surface,
the proceedings unfolding inside a
makeshift courthouse on a hill here
resemble an American trial. A judge
wearing a black robe presides. There is
a public gallery and a witness stand.
Prosecutors present witnesses, and
defense lawyers cross-examine them.
Objections are made and ruled upon.
Prosecutors State Case in First
Guantánamo Trial (July 26, 2008)
Two Sides at Guantánamo Trial Paint
Starkly Different Pictures of the
Defendant (July 23, 2008)
Military Trial Begins for Guantánamo
Detainee (July 22, 2008) But behind the
judicial routine at the first trial for
a Guantánamo detainee lies a parallel
universe of law and lawyers. Secret
evidence held in red folders is not
revealed in open court. The gallery is
mostly empty, because there are no
members of the public. In what would be
the jury box, every occupant wears a
In the first week of the trial of Salim
Hamdan, Osama bin Laden’s driver, law
enforcement officials recounted what he
had said during interrogations in the
years since he was detained in 2001. But
it was also disclosed that some of the
interrogations had been conducted in the
middle of the night and by men wearing
masks, and that Mr. Hamdan did not have
a lawyer during those sessions, nor was
he warned that he might be prosecuted.
Mr. Hamdan’s trial is, in a sense, two
trials. Mr. Hamdan is being tried on
accusations of conspiracy and material
support of terrorism. And the Bush
administration’s military commission
system itself is on trial. After years
of debate, protest and litigation, the
legal standing of the tribunal system at
Guantánamo remains a question for
American courts and officials around the
The chief Guantánamo prosecutor, Col.
Lawrence J. Morris of the Army, said
this first Guantánamo tribunal was “the
most just war crimes trial that anybody
has ever seen.”
Matt Pollard, a legal adviser for
Amnesty International who is an observer
here, sees it differently. He said he
was struck by a sense that the
proceedings were more of a replica of a
trial than a real one.
“We are within a frame of a beautiful
picture,” created by the Pentagon, Mr.
Pollard said. “When you’re inside that
frame, everything looks nice.”
The Guantánamo legal system was intended
to try “unlawful enemy combatants”
caught on the post-Sept. 11 battlefield.
Prosecutors say there is little room for
the usual legal restrictions in
interrogations intended to prevent a
terrorist attack. The administration’s
strategy in using the Guantánamo naval
station was based on its belief that the
Constitution would not apply here.
Legal challenges to that assertion are
among a number of factors that have
delayed the government’s efforts to
conduct trials here for years.
A federal judge in Washington, James
Robertson, refused a last-minute plea by
Mr. Hamdan’s lawyers to stop this trial.
But in his July 18 ruling, Judge
Robertson said serious questions
remained about the system here, calling
it “startling” that evidence obtained
through coercive interrogations was
permitted to be used in trials. He added
that “the eyes of the world are on
But with the trial inaccessible to the
public and no broadcast television
cameras in the courtroom, reporters are
the only way for the wider world to know
what is happening. The Pentagon’s public
relations theme has been “transparency,”
yet the freedom of the press has its
limits at Guantánamo.
Legal documents are often released
months after they are filed with the
military commission, if at all. Military
officials run and attend news
conferences, both for the prosecution
and the defense. Reporters are
accompanied by military escorts almost
everywhere, including to meals and
The spokeswoman for the detention camp,
Cmdr. Pauline Storum, said it was
“standard policy to require media be
escorted,” and that the military sought
to provide journalists access in a way
“that balances the protection of
operation security with providing
With few seats designated for reporters
in the courtroom, the Pentagon set up
closed-circuit televisions at a news
media center in an old hangar. During
some critical moments in the first week
of testimony, the courtroom camera was
pointed away from witnesses’ faces and
the evidence, including documents and
When a reporter noted that in America
reporters were permitted to see
witnesses and evidence, a spokeswoman
for the Office of Military Commissions
at the Pentagon, Maj. Gail Crawford,
responded, “This is not America.”
Without explanation, the camera was soon
back on the witnesses.
One after another, Federal Bureau of
Investigation agents and other criminal
investigators took the witness stand
last week to describe damaging
admissions they said Mr. Hamdan had made
in interrogations, including his
descriptions of attending a terror
training camp and Mr. bin Laden’s
preparations for attacks.
The agents acknowledged that it was
official policy to deviate from their
normal procedure of informing Mr. Hamdan
of any constitutional rights.
One of the agents, George M. Crouch Jr.,
testified that he had helped arrange in
June 2002 for Mr. Hamdan to call his
family. Mr. Hamdan, who had been in
custody for seven months and had been
allowed no contact with the outside
world, “was concerned that they would
think he was dead,” the agent testified.
Mr. Pollard said holding someone
incommunicado for months sounded like
the kind of “disappearances” practiced
by other countries. But in the court at
Guantánamo, the reference did not cause
The interrogations of Mr. Hamdan have
caused him to sometimes think the trial
is just another method of interrogation,
a psychiatrist who interviewed him here
testified. “He doesn’t know if this
court is real,” the psychiatrist, Dr.
Emily A. Keram, said.
In June, the Supreme Court ruled that
detainees here had a constitutional
right to challenge their detentions in
federal court. Some lawyers said the
ruling suggested that other parts of the
Constitution, like the Fifth Amendment’s
right against self-incrimination, might
That could have undercut the case
against Mr. Hamdan. But the military
judge, Capt. Keith J. Allred of the
Navy, ruled that “the Fifth Amendment of
the Constitution does not apply to
protect Mr. Hamdan.”
Even so, the judge excluded some of Mr.
Hamdan’s statements, saying they were
given in the “highly coercive
environment” of an Afghan prison. But he
allowed many other statements by Mr.
Hamdan to be entered as evidence,
including some that defense lawyers
contend were coerced. One of the F.B.I.
agents, Ammar Y. Barghouty, said Mr.
Hamdan seemed to realize during the
interrogations that he had few options.
“A drowning man will reach for a twig,
and I am a drowning man,” Mr. Barghouty
quoted Mr. Hamdan as saying.
Mr. Hamdan’s lawyers say appeals are
likely from any conviction here, setting
the stage for rulings, perhaps years
from now, about whether the courts here
meet American standards.
However the American courts eventually
sort out the Guantánamo legal claims,
the trial here is proceeding with its
own idiosyncrasies. A prosecution
witness presented an organizational
table of Al Qaeda’s leadership from when
Mr. Hamdan was part of Mr. bin Laden’s
security detail. The chart included an
entry for the head of the detail, a
Moroccan, Abdellah Tabarak, who himself
was held at Guantánamo. He was released
in 2004, four years before the start of
Mr. Hamdan’s trial.
Asked about the unusual circumstance
that an employee was on trial while a
man who may have been his boss had been
released, a Pentagon spokesman, Cmdr.
Jeffrey D. Gordon, said, “The transfer
of detainees takes various factors into
consideration,” including a receiving
country’s promise “to mitigate the
Ben Wizner, an American Civil Liberties
Union lawyer who is an observer here,
said the experiences of Mr. Tabarak and
Mr. Hamdan seemed to underscore the
contradictions of the legal system here.
Mr. Wizner said there was a more
fundamental contradiction underlying the
trial. The Bush administration insists
that even if a detainee is acquitted,
officials could hold him indefinitely.
“Where else in the world,” Mr. Wizner
said after court one day, “is someone
being prosecuted for a crime who is
already serving a life sentence and will
continue to serve one if he’s