The Dangers Of Driving Osama

Legal Analyst Andrew Cohen Takes A Look At The Salim Hamdan Verdict

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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So the tiny little fish in the barrel was indeed shot. In the least surprising verdict of this or any other year, a panel of U.S. soldiers Wednesday convicted former Osama bin Laden chauffeur Salim Hamdan of supporting al Qaeda operations before and shortly after the terror attacks on America.

Prosecutors had called him an insider, someone with access to the terror brass and advanced information about their plans. Over and over again, they had used his own words against him, buttressed by the testimony of secret witnesses he was never able to fully cross-examine. And the law was squarely and brazenly on the government’s side, too. You don’t have to provide much support to a terror organization to be deemed a material supporter of that organization.

Hamdan’s lawyers, meanwhile, had called their client a cabbie, a low-level mechanic and errand boy for the organization. They said he attend a terror camp but never was involved in any plans to kill or maim anyone, including any Americans before, on, or after Sept. 11, 2001. And their star witness was none other than Khalid Sheik Mohammed, the 9/11 mastermind, who testified in writing that Hamdan “was not fit to plan or execute” an attack. “He is fit to change trucks’ tires, change oil filters, wash and clean cars,” Mohammed wrote.

Hamdan was “not a soldier, he was a driver” who was only “looking for Osama bin Laden’s money,” Mohammed wrote in testimony read aloud by a U.S. official in open court. The cynical rantings of an arch terrorist bent on saving one of his own? Hardly. Mohammed is the fellow, you may remember, who was keen enough to realize right away that Zacarias Moussaoui (another so-called terror conspirator) was a complete whack job. Mohammed subsequently “fired” Moussaoui from Al Qaeda long before 9/11. He didn’t fire Hamdan, apparently, because even Al Qaeda knows that good mechanics are always hard to find.

It is possible, even likely, that Hamdan’s jury split its verdict (he was convicted of supporting terrorism but not of conspiracy) because Mohammed’s testimony made more sense in many ways than the testimony of the secret witnesses called by the government or the “confessions” offered by Hamdan himself during the many, lengthy interrogation sessions. I mean, how many “masterminds” conspire with their drivers? Even Jessica Tandy never conspired with Morgan Freeman until the very end of that lousy movie -- and they were together for decades.

Indeed, it says something about the dedication and integrity of the “jurors” deliberating Hamdan’s fate that it took them longer to reach their verdict than did the jurors in South Florida who last summer convicted Jose Padilla. The Padilla trial was far longer than was the Hamdan trial. The rules of evidence and jury instructions and virtually every other legal and factual aspect of the respective cases favored Padilla more than Hamdan by a longshot.

And yet our soldiers were willing to take a bit of time, reject one of their own government’s theories of the case, and come back with a verdict. If that verdict ultimately falls it won’t be because a judge determines down the line that jurors unfairly exercised their own independent judgment in convicting Hamdan. It will be because the entire system, the whole process, was constitutionally flawed; that the unfairness was systemic, built-in and designed to ensure convictions at all costs. If there is any cause to be proud of any aspect of this sorry affair, it is the way the “jurors,” our soldiers, handled their solemn duty.

It was the first military commission proceeding since the end of World War II. But its resolution will do little to answer the legal, political and diplomatic questions that surround it. Those answers will begin to come only now, when the conviction and sentence are appealed to the civilian courts-the federal courts that routinely handle appeals in our criminal justice system. Those judges soon will begin to unwind what has just occurred down at Guantanamo Bay, Cuba, to evaluate whether any or all of it was constitutional.

For example, those appeal-court judges will have to determine whether it was constitutionally permissible to have a trial where, as the Los Angeles Times noted this week, “none of the agents nor the reports from CIA interrogations of Hamdan were available to the defense. Four prosecution witnesses testified anonymously and two Army special forces officers called by the defense were questioned behind closed doors, with no media or independent observers allowed.” And those issues are just for starters.

And so a trial that changed the face of American constitutional law (and may yet do so again) ends precisely as it was designed to end by the people in power who designed the legal war on terror. With a conviction. With the White House and Pentagon boasting of the efficacy of the process. And with a model now set for the much more important trials of Mohammed and Ramzi Binalshibh, two truly bad guys. This round goes to the government in a fight that was rigged from the beginning. What happens in the next few rounds is anyone’s guess.

[EDSAndy]

So, the fact that he had two shoulder-fired missiles in his car when captured mean nothing to you and your fellow ACLU commie cronies?

You are pitiful and so are the rest of the liberal America-Wrong pathetic crowd. Y''all do not deserve the sacrifices of our brave troops.

[oneamerican_]

Your far-left opinion is written in the manner of any lowgrade, money grubbing Trial Attorney whining over a missed opportunity to cash in on a case, Andrew Cohen.

Dry up, you liberal weasel.

[sanfelz]

This jury, made up of people whose career is dedicated to destroying those declared "enemy", cannot be considered impartial. Give the prisoners all the rights that are accorded those in civilian courts so that we can show how great and fearless we are.

[forasongca]

When anyone can be "vanished" into a secret prison, tortured into "confessing" to crimes, and convicted without being able to cross-examine or view all the evidence against them...where, exactly are the "freedoms" that al-Qaida claims to hate?

I personally feel that anyone who aspires to killing innocents in order to further their agenda has no moral high ground and *should* be stopped...but if we become like them...who wins?

"We have met the enemy, and he is us." - Pogo

[noloyalisti]

Left Wing Wackos hate Bush so much they cheer for BinLadens personal Driver - Bodyguard, You PEOPLE are INSANE,

Posted by dencal26 at 10:46 AM : Aug 07, 2008

Keep up the good work showing the blogging crowd your fear and ignorance. You must be listening to Limp Ball, O Lie Lee, Slant Head Hannity and the rest of the racist hate mongers. Good job!

[aztecdakota]

Soo now let me understand this. If McCain, Cheney and/or Bush get convicted of political wrongdoings and tried. All of their chauffers will get 30 years in prison? Get real! What about their butlers and maids, and gardeners, and maintnance people? How many years would they get? etc; , etc;, and so forth.

[kazoodan]

Posted by dencal26 at 10:49 AM : Aug 07, 2008


You sound terrified. Maybe you should get some duct tape and plastic sheeting and go hide in your basement. What ever it takes to get you to ****.

[dencal26]

Listen to you nuts? You act as if 911 didn''t happen and that Muslim Terrorism is a myth. 16 Chinese Cops Killed last week by Muslim Fanatic. China has no troops in Iraq or Afghanistan or Saudi.Wake Up

[dencal26]

Liberal Insanity. Same people that defended the Clinton pardons of the FALN. " They were only the Bomb Makers not the actual terrorists".

[dencal26]

Left Wing Wackos hate Bush so much they cheer for BinLadens personal Driver - Bodyguard, You PEOPLE are INSANE,

[veteran188]

when we subvert the law to protect the likes of bush,

we become the terrorists,

all americans should be ashamed after this sham trial

[nearl4511]

Understanding/observing the emphasis of class among Arabs, you know that a driver is basically a servant who would be treated without respect and not given access to much information. The next guy up for trial knows this.

This trial was a forgone conclusion, but is all about showing a system works - not justice.

The next fellow? OK he is a higher up. But this driver fellow? What a travesty.

[wogerwabbit]

This whole farce is a travesty of third world justice played out for political gain by cowards feebly lashing out at the only target they can find... a tortured taxi driver... is that the best they can do? How sad for God blessed America, the past home of the free and the brave, that we''ve been reduced to being the Orwellian, goose bump raising, ''Homeland" in the neocon nightmare that has stricken our country.

[ioweign]

This article should have pointed out how past terrorist trials have benefited Al Queda. Namely the 1993 WTC bombing trial. By providing the organization with top secret information. However I liked the authors tortured attempt to honor the jurors.

Posted by cbscrash07 at 07:25 PM : Aug 06, 2008

Any links to this top secret info that was provided...

[Syndicate]

This article should have pointed out how past terrorist trials have benefited Al Queda. Namely the 1993 WTC bombing trial. By providing the organization with top secret information. However I liked the authors tortured attempt to honor the jurors.

[noloyalisti]

Another fall guy for America''s ongoing War OF Terror. Who are the REAL terrorists. The big American right wing war-profiteering corporations and their media corporations they own.

[johnmccarth2]

Forty years ago the US Government conducted another top secret court-martial with fabricated evidence, witness tampering, a subsequent recantation which was secreted for two years and ultimately ruled as "newly found evidence and fraud on the court" resulting in the conviction for premeditated murder being overturned and eventually dismissed because a conviction at a new trial "would be highly unlikely". More info by Googling my name plus CIA. John McCarthy

[d33pthroat1]

ubrew,
well said!

[ubrew12]

"This round goes to the government in a fight that was rigged from the beginning."

The judicial branch of government, which executes our laws, is supposed to be an independent, unelected, and co-equal branch, just as powerful as the President, and not subject to campaign pressures. By contrast, our military justice system runs under the military, which runs by the whims of its commander-in-chief, Bush, who DOES run under campaign pressures (as a loyal Republican). No less than the Presidents OWN former mouthpiece, Scott McClellan, has said that the Prez is 100% focused on politics in the conductance of his office. As such, these trials are subject to pressures to benefit the Republican Party. Consider just one thing: these people have been in jail for four years awaiting a ''speedy'' trial. Now, in the FALL of an election year, they are finally being tried. Tell me you don''t believe politics played a role in their scheduling, and I''ll sell you a bridge over the Brooklyn River.

There can be no justice here. And the victims of 9-11 deserve justice. They don''t deserve to die twice, once at bin ladens hand, and a second time to support an election campaign for a party they may not have belonged to.

[petesis]

That is a good point. I would rather have a bunch of military guys as a jury than the way we pick em for civilian trials.