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Defending Hamdan: On Ruffling Establishment Feathers

Part Two: Defense lawyer Swift starts to make waves in the establishment, and begins his search for an expert witness

Defense lawyer Charlie Swift was described to me by one of the members of his defense team as “the only bull in the world who brings his own china shop with him” and he proved true to his word in fighting the charges.  He was soon making waves that eventually reached the White House.  As he began a tenacious battle to systematically undermine the charges against his client, he decided to take on Guantanamo Bay itself.

Swift increasingly came to see Gitmo as an offshore ‘Alcatraz’ designed to circumvent the US Constitution, New Prisoner Facilities at Guantamamo Bay. Image courtesy of Brian Williams
not to mention 

America’s legal system (including the right to Habeas Corpus), and other foundations of American democracy and legality.  As such, he began a lone battle against the legality of the Military Commissions that eventually made its way to the Supreme Court.  There Swift achieved a stunning victory in 2006’s Hamdan vs. Rumsfeld, which overturned the Military Commissions set up by President Bush.  It declared them to be in contravention of the Geneva Conventions which offer protections to captured prisoners of war.

Judge Keith Allred, presiding in the case, subsequently congratulated a stunned Hamdan on beating the U.S. President in one of the most important decisions curtailing US presidential power ever.  However, Congress soon restored the Military Commissions and Hamdan and his team of lawyers prepared again to challenge a system stacked against them.  In Gitmo, a place neither fully American nor Cuban, evidence that would never have been allowed in a US court could be used against prisoners living in physical and legal limbo.  In Hamdan’s case this included secret evidence kept hidden from the defense until the last moment, and which had been obtained by sleep deprivation (known as Operation Sandman) and threats.  Also admitted was material that would be considered hearsay on the American mainland.

To make matters worse, the Prosecution had ‘smoking gun’ evidence undermining Swift’s defense that Hamdan was just a driver.  As it transpired, when Hamdan was captured in November 2001 he was driving towards an area where US Special Forces were engaged in combat with the Taliban and their Al Qaeda allies.  When he was stopped and apprehended, a terrified Hamdan had two SA-7 surface-to-air missiles in his car.  Hardly the usual accoutrement for an innocent chauffeur!

The Prosecution was sure this evidence would help them convict Hamdan on the charges of both conspiracy to commit terrorism and material support for terrorism.  Simply put, surface-to-air missiles equaled terrorism.

The Defense had to acknowledge that the evidence was damning.  But Charlie Swift and his team, which included Brian Mizer, Andrea Prasow, Joe McMillan and Harry Schneider, had not fought the case this far to have it sabotaged by a pair of missiles.  There had to be some other explanation for the SA-7s in Hamdan’s vehicle.

The Search for an Expert Witness

As Hamdan’s December 2007 pre-trial hearing approached, Charlie Swift sent out feelers to members of the CIA who had experience with Al Qaeda to see if they could help shed light on Hamdan’s role in the organization, and on his reasons for possessing SA-7s.  Swift’s inquiries led him to a CIA field operative called Marc Sageman.  Sageman had worked with the famous Charlie Wilson to arm and equip the mujahideen freedom fighters with Stinger ground-to-air missiles in the anti-Soviet Afghan jihad of the 1980s.  As someone who had spent years in Pakistan working with Islamic militants and shoulder-fired missiles, he would be an invaluable consultant to the defense team.

Sageman would also be able to supply insight into the internal workings of the Al Qaeda organization.  After retiring from the CIA, Sageman had gone on to earn a PhD in Criminal Psychology and had written perhaps the most important book on profiling Al Qaeda operatives, Understanding Terrorist Networks (University of Pennsylvania Press 2004).  If there was anyone who could put Hamdan’s activities in their proper context it was Sageman.

Swift was not disappointed. When Sageman compared Hamdan’s profile with that of the Al Qaeda operatives he had tracked across the globe, he found that he did not match the usual criteria.  Sageman’s work showed that Al Qaeda terrorists were not poor, brainwashed, uneducated dupes that many had once thought them to be.

On the contrary, they were multi-lingual, well educated, wealthy, self-aware and highly motivated actors.  They were men like 9/11 hijack team commander Muhammad Atta who spoke German and English in addition to his native Arabic and had a Masters degree in architecture from an elite German university.  Atta was able to freely live and operate in the West. Men like Bin Laden, a Saudi millionaire, and Ayman al Zawaheri, Al Qaeda’s number two who had a medical doctorate, were the elite of global terrorism; they were not like impoverished, uneducated Palestinian suicide bombers.  When Khaled Sheikh Muhammad planned and executed the attacks of 9/11, he did so based on years of having infiltrated America as a university student. Like Atta, he exploited his knowledge of our society and used it against us.

Hamdan hardly seemed to fit what became known as the ‘Sageman profile’.  He was an orphan, had dropped out of school in fourth grade, and had lived on the streets in his native Yemen before landing a job as a taxi driver.  Hamdan had no real talents to offer the Al Qaeda leadership in carrying out global terrorist operations like the 9/11 attacks or the simultaneous strikes on US embassies in Kenya and Tanzania in 1998.  While he might have been an Al Qaeda flunky, he had never waged jihad, nor had he been linked by the US intelligence community to any terrorist operations.

With no first hand knowledge of the West, mastery of English, or skills needed to fly a plane, Hamdan would have been incapable of joining an elite sleeper cell like the Hamburg team that infiltrated the US and hijacked our planes on 9/11.  Nor was he a weapons or explosive expert, internet guru, Islamic scholar, or recruiter.  In Sageman’s opinion he was probably what he appeared to be, a lowly mechanic and a driver, not a globe-trotting super-terrorist.

Swift and his team were thrilled with Sageman’s findings and were eager to have him testify as an expert witness.  But here they ran into a hurdle.  Sageman was employed as the New York Police Department’s in-house expert on terrorism.  His employers felt that his testimony might send the wrong signal and Sageman declined to participate in the Gitmo hearing.

But Sageman offered someone else who had both carried out research on the ground in Afghanistan for the CIA and was an analyst on the Taliban and Al Qaeda’s order of battle for West Point’s Combating Terrorism Center: myself.

Tomorrow, Part Three: Brian Williams considers the evidence and the bigger picture, and reaches his own conclusions about Salim Hamdan

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