The Guantanamo trial of Salim Hamdan, one of Osama bin Laden's drivers, ended last week in a startling double defeat for the prosecution: Hamdan was acquitted of conspiring with al-Qaida to attack the U.S., and his five-and-a-half year sentence for providing material support for terrorism was only a fraction of what the prosecutor wanted.
One of the military jury members who decided Hamdan's fate, Lt. Col. Patrick (a Marine lieutenant colonel who asked that his last name not be used because it might endanger him on his next deployment), talks to NPR in an exclusive interview.
Judge Keith Allred, a Navy captain, said jury members could discuss the case as long as they didn't talk about the opinions of other members or discuss classified matters.
Lt. Col. Patrick questioned the government's judgment in going after Hamdan in its first trial.
"This was kind of like using the hand grenade on the horsefly. If you throw the book at this guy, then what do you do about — there are plenty of guys down there that are really bad guys that need to have the book thrown at them, but if you do a 30 [year] minimum [sentence], which was the prosecution's request, and they would have preferred life, where do you step up from that?" Lt. Col. Patrick said.
The prosecution did its best to show Hamdan as a hardened al-Qaida warrior who had taken a personal bayat, or oath of loyalty, to al-Qaida.
"In none of the evidence presented did you ever see him brandishing a weapon at all. Even when he was captured and the evidence all showed that there was an AK-47 right there in the front seat, the guys behind him and in front of him deployed weapons, he bailed out of the car and ran," Lt. Col. Patrick said.
The defense argued that Hamdan had been cooperative with his interrogators, giving up intelligence about al-Qaida. For its part, the prosecution showed a video of Hamdan immediately after his capture in which he appears to resist answering questions. Lt. Col. Patrick says the jury accepted the defense argument that Hamdan didn't know if he was going to be killed by the Afghans who had captured him at that point.
"When he knows that he's in U.S. hands, when he is relatively secure that no one is going to bring harm to him or his family, you can understand that the level of cooperation changed, and that's very understandable again from our point of view as armed forces members," Lt. Col. Patrick said.
Lt. Col. Patrick said he never wants soldiers surrendering to U.S. forces to feel that they might be penalized for cooperating. The defense said that Hamdan cooperated fully during this period, and the U.S. squandered an opportunity — a possible reference to Hamdan's knowledge of bin Laden's location. That testimony came up in closed session.
The panel tried to stay neutral on the question of whether the Military Commissions were illegitimate legal proceedings, as the defense repeatedly asserted, because the defendants were denied certain rights allowed under traditional military or civilian trials, Lt. Col. Patrick said.
"It is what it is," he said. "It was a framework which we were told to operate in. It's different from a regular UCMJ [Uniform Code of Military Justice] court martial type proceeding, we understood that from the get-go, we understood the judge's instructions."
In his closing remarks, prosecutor John Murphy made an impassioned plea to the jury not to return Hamdan to the streets of Yemen, saying that Hamdan represented a threat to the safety of the U.S.
"Do you really think they are going to take him back with open arms, even if he felt any inclination to go back, which we don't think he did?" Lt. Col Patrick said.
Hamdan is still classified as an unlawful combatant by the Bush administration, and as such could be detained indefinitely in spite of his short sentence. Lt. Col. Patrick said that the jury would be extremely annoyed if that happened. After all, he said, what did we come down here for?