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Kyndra Rotunda
Archive Columns
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Today, August 4, 2008, JAG lawyers face off in Guantanamo Bay to deliver closing arguments in the Hamdan case. Hamdan is the alleged bodyguard and driver for Osama bin Laden. According to prosecutors, he was part of bin Laden's inner circle; swore allegiance to bin Laden; attended al Qaeda training camps; transported weapons for bin Laden; and helped bin Laden evade capture by U.S. Special Forces in Afghanistan at a most crucial time -- in the weeks after September 11th, when U.S. forces were hot on his heels. Hamdan was bin Laden's bodyguard and get away driver. Because of co-conspirators, like Hamdan, Osama bin Laden has gotten away with murder.
Prosecutors in Guantanamo Bay presented mountains of evidence, lasting nearly two weeks, to six jurors who will decide whether Hamdan is guilty. If the jury finds Hamdan guilty, he could spend the rest of his life in prison.
The Case Against Hamdan
The U.S. has been criticized for unfair trials that supposedly give prosecutors an edge. But, the facts don't support that charge. What was revealed over the last few weeks is that the military commissions being held in Gitmo are fair, balanced, and afford detainees fundamental due process.
Many of the early criticisms were like the boy who called wolf. Hamdan wasn't excluded from his trial (like defense counsel said he would be); he had an opportunity to present evidence and cross examine witnesses against him; he had the right to remain silent; he can only be found guilty if the prosecution proves its case "beyond a reasonable doubt;" and Hamdan had access to thousands of documents and boxes of evidence against him. The Government went to great lengths to de-classify evidence for trial. It wasn't a rigged trial conducted in the shadows, like defense counsel said it would be. At times the Judge decided issues in favor of Hamdan; and at other times he decided issues in favor of the Government. It was open, fair and transparent.
Hamdan's Lackluster Defense
Defense Counsel steered far away from the facts and presented less than two days worth of evidence. It relied on a statement from alleged 9-11 Mastermind Khalid Sheikh Muhammad, who said (in writing, because he refused to testify on Hamdan's behalf), that Hamdan was only a low-level participant in the 9-11 conspiracy. In KSM's view, Hamdan was not fit to be a terrorist, but only fit to drive them around from place to place. But even if we believe KSM (who was not subject to cross examination), under the crime of conspiracy, low level participants are also culpable. It doesn't matter that the get-away driver didn't rob the bank. He is just as culpable as the bank robber, because he made it possible in the same way that Hamdan made 9-11 possible.
What Happens Next?
Beginning today, prosecutors and defense counsel will present their closing arguments. The prosecutor has the burden of proof, so it will get the last word. Then, the case will go the jury who will decide whether to convict Hamdan. It will also decide the appropriate sentence if he is convicted. Prosecutors have requested life in prison, but the jury could find Hamdan guilty and impose a lesser punishment. The jury will deliberate until they reach a decision, which could range from a few hours to several days. They could feasibly reach a decision by the end of this week.
What happens to Hamdan if the jury finds him guilty?
Hamdan will be imprisoned by the U.S. military and will probably remain in Guantanamo Bay. He will likely be held away from other prisoners, who have not been tried and convicted of war crimes. He will be held in prison-like conditions.
What happens to Hamdan if the jury finds Him not guilty?
Ordinarily, a defendant is free to leave when a jury returns a not-guilty verdict. But, Hamdan's case is different because it occurs during a time of war and the U.S. was already holding Hamdan as soldier for the other side. Under the laws of war, each side is permitted to hold soldiers from the opposing side until the war is over. Holding prisoners is not a form of punishment; it is detention in order to bring the war to a quicker end by preventing soldiers from returning to the battlefield. That is why laws of war (including the Geneva Convention), specify that prisoners will be held until the end of hostility.
If the jury finds Hamdan not guilty, he will return to his cell in Guantanamo Bay where he will stay until U.S. troops come home from the wars in Afghanistan and Iraq. But, he will enjoy greater freedoms than if he is convicted. Most detainees who are not facing trial in Gitmo for war crimes (and presumably those found not-gulity of war crimes), enjoy significant freedom of movement. They live in open bays with 10 to a bay and receive up to 12 hours of recreation times each day. During that time they can play any number of sports including ping-pong, soccer or basketball. They can check out books from the library, watch movies on video, garden, visit the exercise facility, take classes in English, or their native language, play board games, or just mingle and chat together in common areas.
In fact, if Hamdan is like other detainees – he might not want to leave Gitmo! When the Government offered release to one detainee, he asked to stay. Others were released to Albania and said they preferred "captivity" in Guantanamo Bay over freedom in Albania.
Whether the jury decides to acquit or convict Hamdan, the U.S. should be proud of the way this historic trial was conducted in Gitmo, with fair, balanced, and open procedures. When procedures are fair, we can expect some acquittals and some convictions. The scales of justice tip both ways.
*Kyndra Rotunda is a law professor at Chapman School of Law, a Major (JAG Officer) in the Army Reserves, former Gitmo Prosecutor and author of Honor Bound: Inside the Guantanamo Trials (Carolina Academic Press, June 2008), available at Amazon.com.
