JUDY WOODRUFF: The first military tribunal of a Guantanamo detainee delivers a split verdict. We get details on the outcome from Carol Rosenberg of the Miami Herald. She joined me by phone a short time ago from Guantanamo Bay.
Carol Rosenberg, thank you for talking with us again. First of all, describe the scene in the courtroom today.
CAROL ROSENBERG, The Miami Herald: It was a very, very somber affair. The accused, Salim Hamdan, had his head down, had his earphones on his head so he could hear the Arabic translation.
And it was a confusing, mixed-bag decision, so he picked up his headscarf and he wiped his eyes. And it was hard to tell whether he was sad or happy or just as confused as a lot of other people as they were trying to sort it out.
JUDY WOODRUFF: Now, remind us again exactly what he was charged with and then what the jury, military jury decided.
CAROL ROSENBERG: He was accused of two crimes, conspiracy as part of the al-Qaida global terror group and providing material support for terrorism, as Osama bin Laden’s driver, bodyguard, and they said weapons courier.
Well, there were 10 counts in all, and they found him guilty of five counts. They didn’t find any guilt whatsoever on the big conspiracy charge. They seemed to think that it was — it suggested that they didn’t buy the argument that the driver in Afghanistan was part of the conspiracy that toppled the buildings in New York, or the suicide bombings of the USS Cole, or the embassy attacks.
But they found him guilty of being Osama bin Laden’s driver and they found him guilty of being the bodyguard who enabled Osama bin Laden to be part of al-Qaida, the group that carried out those attacks.
So it was very much a split decision. Five counts acquitted, five counts convicted, and then, in the end, the judge decided to consolidate those five counts to a conviction of one count of providing material support for terror.
Now, one count can get him life in prison, so we have to wait and see what the jury decides after the sentencing hearing.
JUDY WOODRUFF: So, Carol, looking back on the trial, can you understand how the jurors came down the way they did?
CAROL ROSENBERG: There’s a couple of issues here. One is that the judge told them that they had to decide that he was part of this giant conspiracy that would link him to September 11th and all these other attacks. And there was testimony that he didn’t even know they were coming down and he only learned about them after the fact.
I mean, the testimony was based on his own interrogation across 18 months, from Afghanistan to Guantanamo. And he basically told FBI and other federal agents what he heard in the front seat of the car from the guys in the back seat about — that were almost like post-mortems on how these different attacks went down. But he didn’t know what the targets were before these attacks took place.
JUDY WOODRUFF: Can you tell us any little bit about the jurors themselves, military jurors?
CAROL ROSENBERG: There were five men and a woman, three lieutenants, two colonels, and a Navy captain, who was the foreman. And they worked hard. They deliberated across three days, eight-and-a-half hours in deliberations, and these are people who have advanced college degrees. They’ve been in the military probably 20 years.
We don’t know their names. They’re protected. But, you know, they spent a fair amount of time diving through a 10-count charge sheet and figuring out which ones they were willing to convict on.
JUDY WOODRUFF: Now, right now, they’re engaged in working on what the sentence should be. Tell us how that process is working.
CAROL ROSENBERG: Yes, you know, the jury convicts by majority, four out of six to sentence him to up to 10 years and, if they’re to give him life in jail or 10 years on, they need five out of six of them.
So they’re going to hear from a psychiatrist. They are hearing from a psychiatrist who’s seen Salim Hamdan here at Camp Delta in Guantanamo. And she’s describing his aspirations, that if he ever gets out of here, what he’d like to do, as a way — called by the defense to try to mitigate whatever sentence they’re going to hand down.
JUDY WOODRUFF: Now, you’ve learned a little bit about — assuming he is going to be held — what the conditions are, where he would be detained going forward.
CAROL ROSENBERG: He’s one of 265 men here held as war on terror captives, enemy combatants, but he’s the only convict. So as the only convict, he can’t be held with the other people.
So they have to create a separate system of detaining him here at Guantanamo as a war criminal, while the others are basically held as either pretrial — they want to charge 79 more of these guys and put them on trial — and they’re held either as what they call enemy combatants, taken off the battlefield until the war on terror ends, or before their trial.
So they have to come up with a different system to hold him separately.
JUDY WOODRUFF: Well, Carol Rosenberg who’s been reporting for us on this trial from Guantanamo Bay, thank you very much.
CAROL ROSENBERG: Thank you.
First run for tribunal
JUDY WOODRUFF: For an assessment of Salim Hamdan's trial and analysis of what his conviction means for him and the military commissions process, we turn to Neal Katyal. He's professor at Georgetown University Law School. He represented Hamdan before the Supreme Court in 2006.
And Andrew McBride, he's a former federal prosecutor, now in private practice in Washington.
Thank you both for being with us. First of all, what do you make of the verdict, Andrew McBride?
ANDREW MCBRIDE, Former Federal Prosecutor: I think it's a real vindication of the military commissions system. I mean, you have here a jury, in my experience as a prosecutor, a jury that very carefully went over every element of every offense.
And they refused to find that Mr. Hamdan was part of the larger conspiracy that included the attack on the USS Cole and the attack on 9/11 itself. What they did find is that he was more than a taxi driver, that he was a bodyguard, that he had sworn allegiance to al-Qaida, and that he agreed with the jihad against the West.
And that is a sufficient basis to convict anyone of violating the laws of war. And I think the commission and the conduct of the captain, Captain Allred, who ran the commission, were exemplary.
JUDY WOODRUFF: A vindication of the process, Neal Katyal?
NEAL KATYAL, Professor, Georgetown University: I don't believe so. I think it demonstrates all the flaws.
This is something that looks like a trial and smells like a trial, but is in no way a trial that Americans are used to. This is a trial that is taking place under a law of Congress that has as its basic assumption that constitutional rights do not apply whatsoever.
So coerced testimony was introduced at this trial. There was no access to the witnesses, the exculpatory witnesses until just the eve of the trial, even the witnesses that Hamdan was accused of conspiring with. These are the only trials in military -- in American history that only apply to non-citizens. We've never done that before.
And most importantly in this trial, even if Hamdan were fully acquitted -- and he's right that he was partially acquitted -- even if he were fully acquitted, he'd still be at Guantanamo for the rest of his life, as the Pentagon has said.
These are trials with literally nothing at stake. Nothing was vindicated today.
Andy says, well, he was acquitted of half of the charges against him and convicted of the others, so that shows somehow the system is fair. Just because a system acquits someone of half the charges doesn't make it fair. I could flip my quarter 10 times. Half the time he'd be acquitted, and half the times convicted, but that wouldn't make it fair.
Questioning the tribunal's set-up
JUDY WOODRUFF: Well, you've raised a lot of points. But, Andrew McBride, what about some of those points, that this was, in essence, a fatally flawed process from the start?
ANDREW MCBRIDE: I disagree with that fundamentally. I think the process was actually quite similar to the process that our own servicemen and women face under the Uniform Code of Military Justice.
And the presiding judge did suppress certain statements from Mr. Hamdan, allowed others in that he found were voluntary, but if he found they were coerced, he kept them out.
Mr. Hamdan had the right to confront witnesses. He had the right to subpoena witnesses in his defense.
JUDY WOODRUFF: Well, let me stop you there. What about that, Neal Katyal, that the judge did throw out some of the statements that he made if he said he thought that they were coerced?
NEAL KATYAL: He certainly threw out some, not all. And that's going to be a big focus on appeal.
But let's get this clear. This is nothing like a trial that an American servicemember faces, which is our proud court martial system. And it denigrates the court martial system to call what happens at Guantanamo anything similar to what happens in our court martial.
ANDREW MCBRIDE: I think that's wrong. I think the main complaint I've heard is the two witnesses, two defense witnesses were forced to testify in secret due to national security concerns. That happens all the time in court martials.
The basic rights were honored here. I don't think this military tribunal was any different than the Nuremberg tribunals, in terms of the care with which it was set up. The jury obviously very carefully studied the charges, deliberated eight hours.
I think it denigrates the U.S. military to assume that a military tribunal is a kangaroo court. It's not.
JUDY WOODRUFF: They did spend eight hours, what, over three days. They seemed to consider each one of these charges.
NEAL KATYAL: Right. And I have deep respect for the presiding officer and the members of the military jury. My criticism -- and I think the criticism of the international community and Americans -- is not that.
It's that the rules that were written by Congress were ones that gave so much power to the prosecution and it basically hamstrung the judge. The complaint is not about secret evidence, although I'm sure that will be some basis of the appeal.
But it's coerced testimony, not access to witnesses, not access to exculpatory material until the eve of the trial, a whole host of things that make this really unlike any other military commission or military trial in American history.
Domestic courts vs. military courts
JUDY WOODRUFF: What about the point about not access to witnesses or exculpatory evidence?
ANDREW MCBRIDE: Well, the access to witnesses and exculpatory evidence argument, I mean, that -- the subpoena power allows you to bring witnesses to trial. But if they don't want to talk to you, you can't force them to talk to you.
And I've often had situations where, in the criminal justice system, witnesses were subpoenaed to trial, but nobody gets to talk to them because they're under high security until a couple hours before the trial.
Everything that Professor Katyal has said is a typical problem or possible problem on appeal in any criminal case. So I think the idea that these are fundamentally different, that somehow some secondary law has been applied or that the Constitution has been ignored is wrong.
JUDY WOODRUFF: Could this have happened in any criminal -- what you're saying here, in any criminal case?
NEAL KATYAL: Absolutely not. The idea that in a criminal case we take a trial without constitutional rights, with the idea that the Constitution doesn't apply, that's preposterous.
The whole reason we have this military commissions system is precisely because it's different. Mr. Hamdan was always happy -- his position has always been, "I'll take a court martial system any day. I'll take an American civilian trial any day."
The position of the government has always been, "No, we can't do that, because we can't convict you in those systems." So to say that this is like a standard military trial or a civilian trial is just false.
ANDREW MCBRIDE: I think the position of the government is, where we deal with military crimes, it's a good idea to have military experts sitting as the jury, and that some of these trials could be extremely dangerous to the public were they held in a civilian setting, not that, "Oh, gee, this helps us get convictions." I think that's a rather reductionist argument.
Setting precedent for trials
JUDY WOODRUFF: Neal Katyal, let's come back to that point we were discussing earlier, about the judge did throw out some of the statements that Mr. Hamdan had made because he said they were, quote, "highly coercive." Couldn't that have a significant bearing on future trials, tribunals against these other 80-some individuals who are expected to be brought before military court?
NEAL KATYAL: It certainly could. It's a welcome precedent, but it is not enough. And it reminds me of the precedent that Mr. McBride brought up the last time we were here, which was the Battle of Malmedy, in which he said 10 of 90 people in an American...
JUDY WOODRUFF: The battle of...
NEAL KATYAL: Malmedy, an American military commission in World War II. And he said that proved the basic fairness, because 10 of the 90 were acquitted.
And so I went back and looked at what happened there. It actually turned out 1 out of 73 were actually acquitted in that. And those trials were marred by the same problem: Coerced testimony was admitted.
The upshot of that was that those trials were often invalidated. Death sentences had to be commuted. And I fear the same thing is going to happen here.
JUDY WOODRUFF: So your point is that's not a precedent, is that what you're saying?
NEAL KATYAL: It's not a precedent. And I think the same problem that happened there, in terms of the marring of the American system of justice in letting terrorists and war criminals go free, is going to happen yet again here.
JUDY WOODRUFF: Something back in the World War II era.
ANDREW MCBRIDE: My point about Malmedy and about Nuremberg, as well, highly inflammatory incidents, like 9/11, yet there were acquittals. You know, there were military tribunals willing to say this person is not guilty.
I simply reject the premise that a military tribunal is inherently biased or that the procedures in a tribunal like this will not do justice. I believe justice was done today, because I don't think you can say that Mr. Hamdan was a cog in the 9/11 plot itself. He wasn't.
Did he aid in the overall scheme and give material support to al-Qaida? Yes, he did.
JUDY WOODRUFF: And, again, he was acquitted on the charge, the wider charge of conspiracy.
NEAL KATYAL: Right. He was acquitted on the most serious charges and convicted of the much more minor ones, but I think the basic point is this. We're not going to win the war on terror by taking a simple driver and prosecuting him seven years later.
And that's the single conviction we've had after 9/11. And if we were really serious about prosecuting terrorists, we should do it, as Andy says, in the court martial system, the American military justice system, which is proud and true and has stood the test of time.
JUDY WOODRUFF: All right, we're going to have to leave it there. We appreciate both of you being with us again, Neal Katyal, Andrew McBride. We appreciate it. Thank you.
ANDREW MCBRIDE: Thank you.
NEAL KATYAL: Thank you.