GUANTANAMO BAY NAVY BASE, Cuba — The war crimes case of Osama bin Laden's driver Monday went to a Pentagon jury of six U.S. military officers asked to choose between two starkly different portrayals of Salim Hamdan — ''al Qaida warrior'' or "the general's driver.''
Jurors deliberated charges of conspiracy and providing material support for terrorism, 10 counts in all, for 44 minutes then quit for the night, to resume Tuesday.
Under the Military Commissions Act of 2006, it takes a two-thirds majority to convict.
Hamdan, 37, is being tried at the first contested U.S. war crimes trial since World War II. Conviction could bring life imprisonment.
Closing out the two-week trial, both the defense and prosecution agreed on the broad strokes of Hamdan's story.
A Yemeni, he went to Afghanistan in 1996 to fight with fellow Muslims against Soviet communist domination in Tajikistan. Sidelined, he got work on bin Laden's farm as a $200-a-month driver and mechanic.
U.S. allies captured him five years later, in November 2001, with two surface to air missiles in his car. He delivered his wife and daughter at the Pakistan border, fleeing the U.S. invasion to topple the Taliban and rout al Qaeda.
They disagree on what happened in between.
Justice Department prosecutor John Murphy cast Hamdan as a passionate al Qaida climber who scaled "to the very top of this terror pyramid.''
Not only a driver, said Murphy, he was elevated to bodyguard, trained at al Qaida firing ranges, and shuttled the boss to news conferences as well as training camps to deliver diatribes against Jews and the Crusaders, code for Americans.
By the time suicide bombers slammed into the U.S. embassies in Kenya and Tanzania in 1998 and later in the Sept. 11, 2001 terror attacks, said Murphy, Hamdan had morphed into ''getaway driver,'' a key cog in bin Laden's motorcade:
It was his job to spirit the al Qaida founder to safety should the convoy come under attack by bin Laden's enemies. Everyone else would stand and fight.
The two surface-to-air missiles in his car, said Murphy, proved he supported terror. He never walked away from al Qaida, even after learning after the fact about the embassy bombings, the 2000 attack on the USS Cole in Yemen and 9/11, proof he was a conspirator.
''He's an al Qaida warrior. He has wounded, and the people he has worked with have wounded the world,'' Murphy told the jury. "You are the conscience of the community.''
Navy Lt. Cmdr. Brian Mizer, tasked by the military to defend the driver, accused the Pentagon of scapegoat of his client.
''We will capture or kill Osama bin Laden some day,'' he told the jury. ``You should not punish the general's driver today with the crimes of the general.''
Hamdan said from his very first interrogation that the car was borrowed, and the missiles were already in them, Mizer said.
Moreover, the naval officer asserted that, in secret testimony last week from an Army colonel, the jury had learned of Hamdan's aid to the U.S. war effort by providing ''critical details'' at the Bagram Air Base, in Afghanistan.
Then he showed a photo to the jurors of Hamdan, blindfolded, flanked by American agents and soldiers whom he had led on a tour of al Qaeda compounds.
Two weeks of evidence, the Navy JAG officer argued, never uncovered that Hamdan "ever fired a shot, ever smelled the powder, ever saw the smoke of any fight.''
Seattle attorney Joseph McMillan, part of Hamdan's team, accused the Pentagon of adopting ''an infrastructure theory'' to prosecute war crimes.
On that theory, he said ''every teacher, every cook, every farmer, every goatherder associated with bin Laden'' was a war criminal, he said, throwing in ''the butcher, the baker and the candlestick maker'' for good measure.
It didn't work in World War II, he said, ''why Hitler's driver was not prosecuted as a war criminal,'' and ''should be rejected'' in the war on terror.
The panel is led by a U.S. Navy captain who has commanded a ship at sea. Others include an Army colonel, the panel's only woman; an Air Force colonel; a Marine lieutenant colonel with a chestful of medals and, two Army lieutenant colonels, one who has flown Apache helicopters in Panama and Iraq missions.
The trial judge, Navy Capt. Keith Allred, has forbidden publication of their names, as a national security matter.
They deliberated at a specially created war court building after a morning dominated by the lawyers closings and instructions on the law by Allred.
At one point, out of earshot of the jurors, Allred differed sharply with a Pentagon case prosecutor, Clayton Trivett Jr., over whether Congress created as a war crime the killing of a legal combatant by an unlawful combatant.
''Murder in violation of the law of war is not the same as killing any lawful combatant,'' he said, citing the examples of a solider killing a wounded soldier, one surrendering or a POW as classic war-crimes murder.
Comments