Salim Ahmed Hamdan, an accused jihadist in solitary confinement 3,000 miles away, doesn’t seem the ideal client for a couple of wealthy, comfortable corporate Seattle attorneys. But pro bono Perkins Coie litigators Harry Schneider and Joe McMillan, compelled by what they call a sense of duty and democracy, are about to help make history when Hamdan, Osama bin Laden’s $200-a-month personal driver and bodyguard, goes on trial planned for Monday at Guantanamo Bay, Cuba.
A federal judge yesterday ruled that the first military tribunal for Gitmo’s 265 prisoners – and the first war crimes trial since WWII - should proceed even if the tribunal should later be found to have violated Hamdan’s constitutional rights.
Hamdan, 36, a Yemeni arrested in Afghanistan in 2001, has been held for six years for conspiracy and material assistance (transporting missiles) for al Qaida. His legal team – which includes another Perkins Coie lawyer, Eric Merrifield, and three D.C. attorneys - says Hamdan chauffered bin Laden but was not a terrorist (he even aided in the U.S. search for bin Laden). Both the defense and the government agree Hamdan was not involved in the Sept. 11th attacks that led to the expanded Gitmo incarcerations and subsequent claims of abductions and torture.His conspiracy case has already led to a landmark Supreme Court ruling against the Bush-convened tribunals for violating the Uniform Code of Military Justice and the Geneva Conventions. Detainees’ habeas corpus rights – granting enemy combatants access to federal court - have been expanded by the high court’s ruling but the effects are yet to be interpreted and decided in lower courts. Thus the military prosecutions continue as if on another planet, and the government indeed claims the Cuba base is alien land, safe from full constitutional intervention.
At the military trial, where Schneider and McMillan and the other attorneys are hoping to set another precedent by winning against weighted odds (and in an election year to boot), hearsay and coerced evidence can be allowed and due process is stifled – Hamdan needs only the guilty finding of five of the seven military commissioners to go to prison for life. In his federal court challenge this week, McMillan failed to persuade the judge the Gitmo delay (which could have thrown the government's tribunal system into disarray) was warranted because "This case raises the question whether the constitutional right to habeas corpus can be rendered illusory merely by subjecting an individual to an unconstitutional trial by military commission."
Hamdan is said to be affected psychologically by his solitary treatment and recently said he was boycotting the commission, then slept through a hearing. He believes the tribunals are politically rigged. Former chief prosecutor, Air Force Col. Morris Davis, agrees. Davis, who resigned in protest in 2007 (four other military prosecutors resigned for similar reasons before him), appeared as a defense witness for Hamdan two months ago, calling the tribunals tainted and unfair. Said attorney McMillan, referring to the Bush administration: "Trying Hamdan under a dubious regime whose very legality has been called into question by the Supreme Court, would reduce the legitimacy of the proceedings in this country and in the eyes of the world." It is set to begin Monday nonetheless.