'A Long Way From Nuremberg'

Salim Hamdan, who served as Osama bin Laden's driver and was convicted at Guantánamo last week of providing material support for terrorism, could be back in his native Yemen before President Bush leaves office in January, according to his lawyers. Hamdan, 40, was the first Al Qaeda detainee to receive a full-blown trial at Guantánamo. A six-member military panel sentenced him last Thursday to 66 months in prison, minus time served (61 months). But it will be up to the Pentagon to decide whether to release Hamdan. The Bush administration has long held that it can continue imprisoning Al Qaeda members—even if they've served their sentence—until the War on Terror is over.

Hamdan's sentencing ended a six-year legal ordeal that was marked by courtroom victories and procedural setbacks. In a case filed by his lawyers to the Supreme Court, justices ruled in 2006 that Guantánamo military commissions lacked the authority to try him and other Al Qaeda detainees. Congress responded later that year by passing the Military Commissions Act, which formed the legal basis for the trials.

Journalist Jonathan Mahler is the author of a new book on Hamdan and his legal odyssey titled "The Challenge: Hamdan v. Rumsfeld and the Fight for Presidential Power" (Farrar, Straus and Giroux). The author spoke with NEWSWEEK's Dan Ephron. Excerpts:

NEWSWEEK: What did you make of the 66-month sentence?
Jonathan Mahler: I was surprised. It was a very light sentence. I thought it was a real vindication for the work his defense lawyers had done, this group of people that includes military lawyers, a law professor and corporate lawyers from Seattle who did the work pro bono. To me that was the most heartening thing about this whole experience, that this guy, an accused and now convicted terrorist, the driver for Osama bin Laden, who is certainly the most evil man alive, would get such a vigorous defense by lawyers, including military lawyers.

Hamdan was acquitted of the conspiracy charge. What does the split verdict say?
Well, to me it says the government didn't do its job very well. If this was the first guy they were able to bring before these military tribunals, for which they basically wrote the rules and took great care in choosing the defendant, and they were unable to get him convicted on the more serious of the two charges, I think it says the government failed to do its job properly.

But all along the government said that there could be acquittals. Maybe this is actually a sign that the system works?
I don't think they expected to launch these historic war-crimes trials, the first war-crimes trials since World War II, with an acquittal on the more serious of the two charges. The whole importance of war-crimes trials is their symbolic significance, the message they send the world. If the first guy who had been trotted out at Nuremberg had been acquitted on one of two charges—first of all the notion that the first guy at Nuremberg would have been a driver for Hitler is on its face kind of laughable—but then the notion that he would have been acquitted would have been an international embarrassment, frankly.

In researching this book, what did you learn about Salim Hamdan?
The defense portrays him as basically a civilian employee of bin Laden, a kind of hapless guy who just needed a job, whereas the government portrays him as a significant player in bin Laden's inner circle, in protecting bin Laden and keeping him safe. To me he's somewhere in between. And this is based on four years of research and interviews with interrogators, his family, his Al Qaeda mentor, the man who recruited him for jihad whom I interviewed in Yemen a few years ago. He's a guy who had a fourth-grade education, had nothing going on in his life. He was a part-time taxi driver sleeping on a mattress in a boarding house. He was chewing on a lot of qat basically and hanging around. Someone came to him and said, "Hey, join the holy war," and it was appealing to him because it gave purpose to his life. It gave him something to do and somewhere to go, and it gave him a salary … I think he was emotionally and psychologically drawn to people with strong personalities, and I think he was drawn to bin Laden. So I don't think he was just some guy who could have been working for anyone but just happened to be working for bin Laden. I think he was committed on a certain level. But I think he also was not really a fierce, hard-core holy warrior.

How fair or unfair was the judicial process?
I think by drawing up a trial system that even top military people told them was no good and was not going to pass muster and would not give defendants their due-process rights, the administration kind of intended to stack the deck against the defendants, and in the end they stacked the deck against themselves. I mean everyone now is inclined to believe these trials are unfair.

In that case, where would we be today if the decision were made at the outset to try these guys in regular military courts, or even in federal courts?
Well, I think we'd be in better shape. We'd certainly be farther along in the process.

Would a federal court have convicted Hamdan?
Well, I don't know … It's hard to know whether the administration would have been able to get enough evidence admitted into court to prosecute him in federal court, given that in these tribunals, many statements Hamdan had made were not admitted. So it's hard to know.

How will the decision impact the trials of the high-value detainees?
Hamdan was chosen as the very first case in part because the prosecution felt he was going to be a clean case, that there weren't going to be issues of torture and that he was a cooperative detainee. And yet, the judge had to bar statements he made. Well, what's going to happen when the defendant is a more senior figure and wasn't cooperative? It's probably safe to assume he was treated more roughly, maybe rendered to a foreign country for a while. So I think the message is the government is going to have its work cut out for it with the high-value detainees.

You mentioned Nuremberg earlier, and both the prosecution and the defense talk about Nuremberg as the gold standard for military tribunals. Is there a comparison to be made here and if so, how does Gitmo justice stand up?
The chief prosecutor at Nuremberg, Robert Jackson, began his opening argument not by ticking off all the Nazi atrocities but basically by paying tribute to this war-crimes court and the idea that rather than summarily executing these Nazi leaders—which, frankly, that's what [British Prime Minister Winston] Churchill wanted to do—we're giving them a fair trial. And that this is one of the greatest tributes that power has ever paid to reason. Basically, he was saying these trials would stand as a great monument to the rule of law, an emblem of how important it is to have fair and public proceedings. With Guantánamo, however things end up, no one can really make the case at this point that these tribunals are going to stand as some kind of great symbol of the grandeur of justice, given that even now we're talking about their legitimacy and fairness and they've already been overturned by the Supreme Court twice. So we're a long way from Nuremberg.