Expert Weighs In On Guantanamo Trial

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Osama bin Laden's driver Salim Hamdan is the first prisoner to face a U.S. war crimes trial since World War II. Professor Scott Silliman, executive director of the Duke Law School's Center on Law, Ethics and National Security, says the trial will be very similar to a regular criminal trial.

ROBERT SIEGEL, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.

MELISSA BLOCK, host:

And I'm Melissa Block.

The first U.S. war crimes trial since World War II got under way today in a small windowless courtroom at Guantanamo Bay, Cuba. Salim Ahmed Hamdan entered a plea of not guilty to charges of conspiracy and aiding terrorism. Hamdan was a driver for Osama bin Laden in Afghanistan, he was captured in November 2001, and his trial is being conducted by a military tribunal after years of legal wrangling over the constitutionality of the process.

Scott Silliman joins us to talk about how this trial will be run. He's a former military attorney, now head of Duke Law School's Center on Law, Ethics and National Security.

Welcome back to the program.

Professor SCOTT SILLIMAN (Executive Director, Duke Law School's Center on Law, Ethics and National Security): It's a pleasure to be with you, Melissa.

BLOCK: And let's talk first about the jury pool, these are all military officers. How were they picked?

Prof. SILLIMAN: Melissa, each of the three major services - Army, Air Force, and Navy - submit the names of about 160 commissioned officers to the head of the military commission system, Judge Susan Crawford, and these officers must all at least have a security clearance of top secret. And she actually sits down with the folders of these 480 military officers and makes a selection. And in Hamdan's case, she selected 13 officers as the panel to hear his case - 10 regulars and three alternates.

What happened today was that attorneys for both Salim Hamdan and the government go through what we call voir dire - they ask questions of these 10 officers, and then challenges for cause can be issued to try to winnow that jury down.

BLOCK: And how many jurors will they ultimately have? How many do they need?

Prof. SILLIMAN: Well, they must have a minimum of five on the jury, that's what Congress said. Judge Crawford selected a total of 10 assuming that at least five will survive the voir dire in the challenge process today.

BLOCK: There's been a lot of legal wrangling over what statements made by Salim Hamdan under interrogation, what statements are allowed at the trial, and the judges ruled on this. What did they say?

Prof. SILLIMAN: Well, the judges indicated that some of the statements that were taken from Salim Hamdan were taken under certain circumstances of coercion, that the judge believes that they should not be brought before the jury, that the totality of the circumstances does not render them having a probative value, that the interest of justice would not be served by having the jury see them. So the government will not be allowed those in evidence to prove his guilt.

BLOCK: The judges drawing the distinction here between statements made under coercion and statements made under torture, all of which would've been inadmissible?

Prof. SILLIMAN: That's exactly correct. Coercion is a lesser standard, and then it's totally up to the military judge as whether they should be admitted or not and presumably that's what he's decided.

BLOCK: And other evidence - if you were to compare this trial with what we would commonly know as the - a criminal trial in ordinary court, how does it compare?

Prof. SILLIMAN: We would not see a great deal of difference, Melissa. The military commission trial itself will be very similar to a military court martial. So it will be a regular trial just as your listeners are used to seeing if they've ever been to a criminal court.

BLOCK: Hearsay evidence that will be allowed in this trial would not be allowed in regular court?

Prof. SILLIMAN: That's true. What Congress said is that hearsay evidence is admissible unless the accused can demonstrate that it's unreliable and lacking in probative value. In other words, the burden is upon Salim Hamdan to say this hearsay evidence is not reliable and therefore shouldn't be used against him. Congress put that right into the statute, so that's the way they decided the evidence should come forward.

BLOCK: If Hamdan is convicted in the end, what are his rights of appeal?

Prof. SILLIMAN: Well, initially, if he's convicted, it will go through Judge Crawford, the convening authority. It would then go to a Court of Military Commission Review, which Congress created. Then it can go to the U.S. Court of Appeals for the District of Columbia Circuit. And then ultimately, Melissa, Hamdan can petition for certiorari or for review in the United States Supreme Court, and that may well happen in this case.

BLOCK: And if Hamdan were to be acquitted, does that mean that he then gets out of Guantanamo Bay?

Prof. SILLIMAN: Well, not necessarily. The fact that he would be acquitted of criminal charges does not in any way affect his detention status as an unlawful enemy combatant. And, of course, that debate is still raging in this country, what do we do with those at Guantanamo Bay who will never be brought before a criminal military commission or, like Hamdan as you suggest, might be acquitted. They could still be held unless Congress decides otherwise or unless a new president decides otherwise.

BLOCK: Scott Silliman, thanks very much for being with us.

Prof. SILLIMAN: My pleasure, Melissa.

BLOCK: Scott Silliman, a former Air Force judge advocate, is now executive director of the Center on Law, Ethics and National Security at Duke Law School.

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