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Defending Hamdan: Letter and Spirit of the Law

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

In October of 2007, I received a phone call from Charlie Swift. Sunrise over the Hindu Kush Mountains on journey through the Salang pass to Mazar-i Sharif. Image courtesy of Brian Williams.He introduced himself and asked me if I was familiar with the

Hamdan case.  When I replied that I had followed it from afar, he asked me what I thought about Sageman’s findings on Hamdan.  Did they dovetail with my own work on Al Qaeda sleeper cells in Turkey and jihadi fighting forces in Afghanistan, Bosnia, Kosovo, Chechnya, Kashmir and elsewhere?

I was not sure where Swift was going but told him I would need to have access to more of his information in order to make a judgment.  As much as I respected Sageman, with whom I had worked over the years at the US military’s Joint Information Operations Warfare Center, I was not sure if I wanted to offer my support unless I knew all the facts.

Swift was, however, confident I would come around to Sageman’s perspective if I was given access to the same information with which he had been provided.  Would I be interested in flying down to Washington DC to meet with his team and see the files on Hamdan?  Intrigued by Swift’s enthusiasm and interested in meeting the tenacious JAG who had been such a thorn in the side of the Bush administration, I took him up on his offer.

In November of 2007 I flew down to DC to meet with Sageman, Swift, and another old CIA legend, Milt Bearden, to discuss the case.  As Swift and his team walked me through the circumstances of Hamdan’s capture, showed me photographs of his car and weapons, and used maps and declassified information to bring to life his movements in November of 2001, I began to see him in a new light.

It became increasingly obvious that I might have information that could be crucial in providing the context to Hamdan’s activities in Afghanistan prior to his capture.  From a purely legalistic perspective I was sure this information would help the defense beat the ‘smoking gun’ charge of carrying SA-7s to engage in terrorism.  In essence, my own research in Afghanistan gave me an explanation for the missiles and led me to the conclusion that Hamdan was not an ‘illegal combatant’: he was a legal combatant and worthy of Geneva Convention protections.

Expert Witness Testimony

As I mulled the case over, I decided to do what Swift had suggested and try to see it not in the immediate context of the post-9/11 rules for the war on terror, but to look at the big picture.  Swift wanted me to see Hamdan’s case in the context of over two hundred years of jurisprudence and democracy that had made America a model for other nations.  As a historian I decided I would try to consider how we would be judged by future generations for having created ad hoc rules in a time of crisis that might permanently undermine our democracy.

Why not try ‘unlawful combat detainees’ in a regular court of law like the one that convicted Johnny Walker Lindh, the “American Taliban”?  Didn’t we have enough faith in our own legal system?  Were we not undermining the Geneva Conventions with our actions?  What would I have done during the internment of the American Japanese during World War II on blanket charges of ‘treason’ or other abuses of American and international law?  As I listened to Swift’s passionate critiques of Gitmo’s damaging impact on our democracy, I also asked myself where I would have stood in an earlier era when Senator Joe McCarthy ran roughshod over US laws in a time of crisis to arrest Americans for being suspected Communists?

As someone studying declining perceptions of the US in the Middle East and Europe, I also asked myself how the world would perceive us if we continued to run what most foreigners saw as an off shore “gulag” to avoid our own laws?  What about the “universal truths” that we felt applied to all men, including those who had been charged, but not convinced, of terrorism?

I had to agree with Swift. For all his obvious involvement with Bin Laden, Hamdan deserved a fair trial.  This was what America was about.  This principle was bigger even than the war on terror.  Hamdan deserved to be tried for the specific crimes he had allegedly committed, nothing more.

This was the key to my decision to act as an expert witness in the case.  In my professional judgment, Sageman, Swift and his team were right: Salim Hamdan was not a member of the Al Qaeda terrorist elite.  Having carried out my own research on an Al Qaeda sleeper cell that struck Istanbul in 2003, I realized Hamdan did not fit my profile of an Al Qaeda terrorist either.  In my judgment his crime was not planning or participating in 9/11, it was something that I as an Afghan specialist understood all too well.  I understood that Hamdan was providing logistic support for a little known Al Qaeda group known as the Ansars.

Tomorrow, Part Four: Brian Williams put the Ansars in context and tries to convince the court of his convictions at Salim Hamdan’s pre-trial hearing.

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