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No Verdict in 2nd Day of Guantanamo Deliberations

August 5, 2008

GUANTANAMO BAY NAVY BASE, Cuba _ A military jury deliberated a second day without a verdict Tuesday in the case of Osama bin Laden’s driver, Salim Hamdan, accused of 10 counts of conspiracy and providing material support for terrorism.

The jury of six officers got the case Monday after extensive closing arguments. They deliberated a total of six and half hours across both days before retiring for the night at this remote U.S. Navy base in southeast Cuba.

Hamdan, 37, was captured in November 2001 in Afghanistan by allied U.S. troops. He had two surface-to-air missiles in his car when captured and has been held at Guantanamo since May 2002.

Attorneys presented the war crimes case and Hamdan’s defense over the past two weeks. Conviction could carry a maximum sentence of life in prison.

Deliberations ended at 5 p.m. EDT Tuesday. The president of the jury, a Navy captain, notified the military judge that the panel would go back to work at 8:30 a.m. Wednesday. Besides the Navy captain, the panel includes two colonels and three lieutenant colonels from the Army, Air Force and Marines.

In his closing, case prosecutor John Murphy cast Hamdan as an al-QaIda co-conspirator, saying he served as bin Laden’s driver in Afghanistan from 1996 until Hamdan’s capture. He accused the Yemeni of rising through the ranks to become a trusted bodyguard and key cog in the infrastructure of the international terror group.

”He is an al-QaIda warrior,” Murphy said Monday at closing, pointing a finger at the accused, who sat at the defense table in a traditional Yemeni skullcap, white robe and sports jacket atop his tan prison camp trousers.

Testimony at trial, based on interrogations of Hamdan, described him as overhearing bin Laden plot ”operations,” then opting not to quit his job after realizing the ”operations” were the 1998 attacks on the U.S. embassies in Kenya and Tanzania, the 2000 suicide bombing of the USS Cole and the Sept. 11, 2001, attacks.

Hamdan’s military and civilian defense lawyers say the Pentagon has made a scapegoat of their client, prosecuting him in place of the still at-large bin Laden.

They also deride the war court, called a military commission, because Congress permits it to use evidence obtained from 18 months of interrogations of their client _ from Afghanistan to Guantanamo _ without the benefit of a warning against self-incrimination or the consultation of an attorney.

”In no other court in this country would the evidence be admissible,” said retired Navy Lt. Cmdr. Charlie Swift, who called the trial “by no means transparent.”

Defense lawyers had two U.S. Special Forces officers testify in secret because government security officers declared their testimony classified. Prosecutors had an FBI agent and a U.S. Special Forces soldier testify anonymously _ one as Witness 1, the other as Sgt. Maj. A.

Hamdan’s charge sheet lists two counts of conspiracy and eight counts of providing material support for terrorism _ from allegedly serving as a driver to allegedly serving as a bodyguard to allegedly trying to deliver surface-to-air missiles to the enemy.

Also Tuesday, Hamdan case prosecutor Clayton Trivett Jr. argued to the judge _ out of earshot of the deliberating jury _ that he had instructed them incorrectly on one of the conspiracy counts.

Trivett wanted the judge, Navy Capt. Keith Allred, to include a broad definition of attempted murder in one count alleging the driver was transporting surface-to-air missiles as part of the conspiracy.

Allred told the jurors that for attempted murder to be a war crime the target would have to be civilians, military medical or religious personnel or legitimate forces out of the battle because they were captured, sick or wounded.

There was no evidence at trial that the target of the SA-7s was anything other than U.S. forces and their allies seeking to topple the Taliban.

Prosecutors wanted the judge to instruct the jurors that any attempted killing of lawful combatants by an unlawful combatant would constitute a war crime. Hamdan is being tried as an “unlawful enemy combatant.”

Defense lawyer Joseph McMillan countered that any effort to change the instructions while the jury was deliberating could lead to a motion for mistrial.

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