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Detainee Convicted by Military Panel

By WILLIAM GLABERSON NYTimes
Published: August 6, 2008

GUANTÁNAMO BAY, Cuba — A panel of six military officers convicted a former driver for Osama bin Laden of a war crime Wednesday, completing the first military commission trial here and the first conducted by the United States since the end of World War II.

But the commission acquitted the former driver, Salim Ahmed Hamdan, of a conspiracy charge, arguably the more serious of two charges he faced. His conviction came on a separate but lesser charge of providing material support for terrorism.

Mr. Hamdan, who has said he is about 40, faces a possible life term. The sentence is to be set in a separate proceeding before the same panel that is to begin this afternoon. As the verdict was read, Mr. Hamdan, who has been in custody since he was detained in Afghanistan in November of 2001, stood passively at the defense table in a white headscarf, his head bent slightly down.

The conviction of Mr. Hamdan, a Yemeni who was part of a select group of drivers and bodyguards for Mr. bin Laden until 2001, was a long-sought, if somewhat qualified, victory for the Bush administration, which has been working to begin military commission trials at the isolated naval base here for nearly seven years.

Mr. Hamdan was convicted by a panel of six senior military officers who, according to an order of the military judge, could not be publicly identified. The panel deliberated for eight hours over three days. As permitted under the law Congress passed for trials here in 2006, the trial included secret evidence and testimony in a closed courtroom.

Critics have long claimed that the military commission system here does not meet American standards of fundamental justice, in part because the Military Commissions Law allows hearsay evidence and evidence derived through coercive interrogation methods. The public is not allowed in the courtroom, and legal documents are often never released.

After closing arguments Monday, Charles D. Swift, a former Navy lawyer who has represented Mr. Hamdan for years, said the two-week proceeding here had been a trial that did not follow the American rule of law and that the defense believed American courts would eventually correct the legal errors here. Mr. Swift called the military commission “a made-up tribunal to try anybody we don’t like.”

The not-guilty verdict on the conspiracy charge was a setback for the military prosecutors. The charge had asserted that Mr. Hamdan joined in the conspiracy that included the 2001 and other major terror attacks by helping transport and protect Mr. bin Laden.

But the verdict was also a vindication of sorts for the military commission system here, which critics had long said would simply rubber-stamp the charges of Pentagon prosecutors.

Michael J. Berrigan, the deputy chief defense counsel for Guantánamo, said the defense was encouraged by the verdict. “For a team that was expected to strike out at every pitch,” he said, “we at least hit a triple.”

He described the conspiracy charge that was rejected by the panel as the government’s main charge, and noted that when Mr. Hamdan was originally charged in 2003 the only charge he faced was conspiracy.

Defense lawyers have long argued that material support has not historically been part of the international law of war, which is the law applied by the military commissions here. In civilian law, material support for terrorism is a relatively recent concept, designed as a broad law-enforcement tool to contend with the new challenges of terrorism.

Prosecutors argue that, although the terminology “material support” may not have existed historically, the laws of war have long prohibited stealthy attacks on civilians, the mainstay of terrorism groups and the target of material-support charges. Mr. Berrigan said the defense would soon begin efforts to raise its challenges to material support charges here.

After an appeal to a military commission appeals court, convicted detainees are permitted to take their cases to American federal court.

The panel members rejected each of two specifications that would have supported a conviction for conspiracy. One of those asserted that Mr. Hamdan was part of the larger conspiracy with senior al Qaeda leaders and shared responsibility for terror attacks like the 1998 bombings of United States embassies in Kenya and Tanzania and the 2001 terror attack.