Pre-trial Hearing of the Detainees at Guantanamo Bay

MARGARET WARNER:

Today's pretrial hearing marked the first time any of the nearly 600 detainees at Guantanamo Naval Base has faced formal charges.

In the dock was a 34-year-old Yemeni, Salim Ahmed Hamdan, who was apprehended in Afghanistan nearly three years ago; he and three other detainees who will also have hearings this week, have been charged with conspiracy to commit war crimes.

Neil Lewis of the New York Times was inside the courtroom today and joins us now to tell us about the proceedings. Neil, welcome. First, give us some context for this. How did these military tribunals come about?

NEIL LEWIS:

Well, these were put in place nearly three years ago following only two months after the Sept. 11th attacks. And the original intention of the government was to use them to exact retribution and justice, but they got delayed very long because the mission changed. They decided it's better not to bring these people to trial.

They've kept them here for a very long time without charging them and they assert that they're getting intelligence from them instead. But there has been great pressure from abroad and elsewhere to bring them to trial. And that's what's finally happened today, at least with these preliminary hearings this week for the four people.

MARGARET WARNER:

All right. So set the scene in the courtroom for us today. Who was there? How did the proceedings unfold?

NEIL LEWIS:

Well, the courtrooms here near the headquarters overlooking the harbor here at Guantanamo, it's not an old paneled courtroom like you saw in A Few Good Men. It's a very brightly lit, red-carpeted modern facility.

And Mr. Hamdan was brought in with two guards, not shackled, as authorities had previously indicated he would be. He was wearing a traditional Yemeni outfit of a long white gown, overlaid by a sport coat and a head scarf. And he looked kind of bemused and bewildered as he came in. Then he saw his defense lawyer, Lieutenant Commander Charles Swift, a Navy lawyer who whom he has grown quite close. And he broke into quite a wide grin upon seeing him.

Sitting at the table unshackled, he was getting the translations of what was going on through headphones — not quite as professionally as at the United Nations. People were speaking extraordinarily slowly. And maybe that's one of the reasons it's taking so long.

MARGARET WARNER:

All right.

NEIL LEWIS:

Right now they're in…

MARGARET WARNER:

So I gather there are five presiding judges and then there is a prosecutor and a defense attorney. Who actually read the charges, and tell us what the charges are that would really constitute crimes of the sort that would warrant life in prison, which I gather is what the government is seeking here.

NEIL LEWIS:

Yes. All four of these defendants face life in prison without parole. And they're all charged with some form of conspiracy to commit terrorism. Of the four, the Australian detainee, David Hicks, will have his day in court tomorrow, is the only one who faces additional charges, attempted murder and aiding the enemy.

MARGARET WARNER:

But what about Hamdan?

NEIL LEWIS:

Hamdan's charge is a conspiracy to commit terrorism. Hamdan is a man who freely admits that he was a driver for Osama bin Laden in Afghanistan.

He said he was trying to get somewhere else, and he found this job — only worked on Osama bin Laden's agricultural complex, had nothing to do with al-Qaida; nothing to do with terrorism. The charge, however, contends that he was heavily involved in transporting and body-guarding Osama bin Laden. None of the four face the death penalty, by the way.

MARGARET WARNER:

So what tack did his defense lawyer, Mr. Swift, take?

NEIL LEWIS:

Well, all the defense attorneys have had a most interesting approach to this. Not only have they all, as lawyers, as defense lawyers, do defend their clients and protest their innocence, they have — and these are guys and one woman in uniform — attacking the system as unfair, un-American, no due process, and they've gone around the world making speeches saying that to the presumed annoyance of their superiors in the Pentagon who publicly say, well, that's what we have to bear.

So today, continuing that strategy, Commander Swift attacked the tribunal. He specifically attacked the presiding officer — Colonel Peter Brownback, who is a retired Army judge who has come back to take on this chore.

And he said, he explicitly asked Colonel Brownback to withdraw from the case saying he was unqualified and could not be impartial. And he cited for that, again part of the same theme, that the deck is stacked against us, that Colonel Brownback, the presiding officer, he is friendly and has an aide who talks to the person in charge of the military commissions.

So Commander Swift was clearly suggesting that the whole thing is… has a collusive element among the military lawyers to sort of see that it goes their way.

MARGARET WARNER:

And how did Colonel Brownback, the presiding judge, respond to this demand?

NEIL LEWIS:

Well, that was to me the most fascinating thing to witness during the day because he seemed to me to represent the military's approach to having to undergo this process in that he was at times very solicitous and at times clearly annoyed. And he just seemed to oscillate back and forth between those things, you know, telling Commander Swift, well, okay go, ahead and ask your question, go ahead and other times, of course.

So I think he… it was a tension within him between those two impulses – that he was impatient and unhappy and certainly was unhappy being asked to withdraw from the case. But he, like the military understands, they have an obligation to… and a chore to try to appear fair.

MARGARET WARNER:

All right. And now, when will the trial be held, and what will be the ground rules? What are the things that are different from a regular criminal trial that we might see in this country, that the rights of this defendant won't enjoy or things that will be different?

NEIL LEWIS:

I would say the two most important things are, one, there is no independent appellate process, no review outside of the military. Even in the military justice system of court-martials, eventually cases may be appealed into the civilian justice system.

Here everything is insulated within the Pentagon. There is only appeals within the military all the way up to Secretary of Defense Don Rumsfeld.

The other major thing is there are extremely loose rules for admitting evidence against the defendant. Hearsay, which we know is often excludable, is quite permissible here. And the standard here is evidence may be admitted if it has probative value to a reasonable person.

In essence, that means the presiding judge will be making new law and just about anything could theoretically be admitted into evidence. In addition, you have the problem here of classified information.

It's difficult for the defendant to know all the details of people who made accusations or allegations against him because some of it is classified. And he will not know that, and that might well be a handicap in trying to dispute that charge.

MARGARET WARNER:

Neil, the Supreme Court in June ruled that all these detainees have the right to challenge their status as enemy combatants in federal court in the United States. What happened to Hamdan's right to do that?

NEIL LEWIS:

He still has that right. And, in fact, his lawyer today, Commander Swift, said he wanted to go through that process first. He even has a third challenge in federal court, challenging the tribunals.

MARGARET WARNER:

Neil Lewis, thanks so much.

NEIL LEWIS:

Thank you now.