From the Editors
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The Oath, directed by Laura Poitras. USA, 2010.
The Oath by filmmaker Laura Poitras weaves a documentary account of the lives of two Yemeni men to offer a fresh perspective on the “war on terror.” The man you have probably heard of, Salim Hamdan, is conspicuously absent because it was shot while he was locked away in the US naval base on the south side of Cuba. Like a ghost, Salim haunts the other man, the film’s main protagonist, his brother-in-law “Abu Jandal.” It was Abu Jandal, a charismatic jihadist, who worked as Osama bin Laden’s bodyguard from 1997 to 2000 and who got Salim a job as his driver. Salim was captured by the Northern Alliance in November 2001 and sold to US forces for bounty. The irony at the heart of the film is the fact it was Abu Jandal who had sworn an oath of allegiance to al-Qaeda and Salim who didn’t but nevertheless ended up in Guantánamo Bay.
The film presents footage priceless for its rarity and historical significance, including video clips of Salim’s first interrogation by US soldiers and press conferences featuring the military and civilian lawyers involved in his trial before the military commissions. Most of the film follows Abu Jandal. Some scenes take place in his taxi as he drives around Sana’a opining about al-Qaeda, American imperialism, and the fate of his benighted relative. “Thinking about him wrenches my heart. I tell myself he should be here with his family instead of me… Imagine he dies in Guantanamo and his daughter asks me, ‘Uncle, why was Daddy in Cuba?’ Should I tell them it’s my fault?”
In order to impress upon the audience how enthusiastic Abu Jandal’s commitment to jihad was, in one early scene he and his 7-year-old son are looking at family pictures, including one of the boy at two months old, taken when the family was living in Kandahar. The baby in the picture is surrounded by an AK-47 and grenades. Abu Jandal asks his son, “What do you want to be when you grow up, a jihadist or a mechanic?” “A jihadist. Like you.” In a later scene, Abu Jandal is conversing with several of his Islamist acolytes. One asks, “Is there a chance that al-Qaeda could become part of the political game?” He answers, “If al-Qaeda gets involved in the current political game, then it is lost, over…But if you stay on the battlefield, then a soldier can kill a king.” The acolyte asks, “So every Islamic movement that enters politics is finished?” “Yes. For one reason: when you accept the other as he is, then you are in agreement with his infidelity and lowliness.”
For Abu Jandal, jihad-as-calling began in 1994. He was 19 when he went to Bosnia to fight, assuming his nom de guerre which means “father of death.” In 1996, he led a group, including Salim, to Tajikistan. Bin Laden heard about the group and invited them to join the fight in Afghanistan. Abu Jandal explains to an Al Arabiyya interviewer that he swore the oath shortly after meeting bin Laden. He underwent extensive training in weapons and military tactics. He was so close to bin Laden, as he told Bob Simon of 60 Minutes, that it was he who had a special weapon to kill bin Laden if there was ever an attack and his bodyguards were unable to save him from capture. Salim, by contrast, was just a driver.
In an audio clip recorded in May 1998 when Salim was driving an ABC News team to interview bin Laden, he can be heard asking the Iraq-born translator what Americans think about bin Laden. The translator answers in Arabic, “The American people are not interested. They don’t care unless there are major emergencies, unless lots and lots of them are killed.” ABC reporter John Miller then asks in English, “What the hell are they talking about?”
Footage shot in January 2000 shows bin Laden addressing several dozen of his closest followers about the importance of waging jihad against America and its allies. In attendance at that gathering on a dusty Afghan hillside were several of the men who would become 9/11 hijackers, including Mohammed Atta. Abu Jandal was there, too. On October 12, 2000, al-Qaeda suicide bombers attacked the USS Cole while the navy destroyer was harbored for refueling in the Yemeni port of Aden. Two months earlier Abu Jandal had returned to Yemen from Afghanistan. He was arrested on the suspicion that he had been involved in plotting the Cole bombing.
Abu Jandal was in a Yemeni jail on September 11, 2001. Six days after the attacks, FBI agents came to interrogate him. The agents, Ali Soufan and Robert McFadden, followed FBI policy by reading Abu Jandal his Miranda rights each day before they started; that was before Dick Cheney’s dark-sided enthusiasm for torture had prevailed. The agents used conventional trust-building methods, softening him up with sugar-free cakes (because he is diabetic). When they told him that some of the people he had identified from pictures were 9/11 hijackers, he broke down and began talking. As he explained to the filmmakers, the targeting of civilians was not the kind of jihad he had signed on to support.
According to the FBI report, Abu Jandal provided a vast amount of information about air defense and weapons systems in Afghanistan, munitions and training facilities, the location of tunnels, and details about bin Laden’s security and strategic thinking. In fact, he provided so much intelligence that the US delayed the invasion of Afghanistan until his interrogation was completed. The film includes footage of Soufan testifying (behind a screen) in Congress on May 13, 2009. Soufan had recently gone public with his criticism of the egregious errors the government had made in adopting a policy of interrogational torture. He cited the “treasure trove of actionable intelligence” he and his partner had gleaned from Abu Jandal as evidence of the efficacy of non-torture tactics. He had refused to use “enhanced interrogation methods” because they do not work and therefore do not service the interest of national security. With a flair for irony, the film includes Soufan’s line to the Committee: “I took an oath swearing to protect this great nation.”
Abu Jandal spent three years in prison, although he was never charged with any crime. In 2003, he was one of 364 people released after participating in the Yemeni government’s reeducation program for jihadis called “The Dialogue Committee.” According to the Committee’s leader, Judge Hamoud al-Hitar, he was much more radical than other detainees, but after The Dialogue “he became the most committed to its results.” As part of this program designed to facilitate the reintegration of reformed jihadis into society, the government provided Abu Jandal money to buy his taxi.
Salim’s story of incarceration at Guantánamo, while fascinating and infuriating, is told less effectively. The audience learns little about his interrogation and treatment—details that are essential to understand why, of the 779 people who ever landed in Guantánamo, he was one of the first to be charged and prosecuted by the military commissions. We see Salim’s first military lawyer, Lt. Cmdr. Charles Swift, but learn little about how and why he mounted a case to challenge the legality of the whole military commission system that went all the way to the Supreme Court. From footage of press conferences at Guantánamo, we see but are not told the identities of two of the civilian lawyers, Joe McMillan and Harry Schneider from the Seattle-based firm of Perkins Coie, who were part of the team in Hamdan v Rumsfeld. The civilian lawyer who argued the case, Georgetown law professor Neal Katyal, appears only as a name in a screen shot of a New York Times article. (For a filmic version of the Hamdan case, we must wait for the adaptation of Jonathan Mahler’s book, The Challenge, which was bought by George Clooney who, reportedly, will direct and play the role of Swift.)
The narration of Salim’s case focuses mainly on what happened after the Supreme Court’s ruling in June 2006 which decreed the presidentially-created military commission system unconstitutional. The victory for Salim and his lawyers was hailed by proponents of the rule of law as a landmark. But neither the Bush administration nor the Republican-dominated Congress was willing to accept the decision and it was gutted in October 2006 with the passage of the Military Commissions Act that reestablished the commissions with minor modifications. On May 10, 2007, Salim was recharged with conspiracy and providing material support for terrorism. His attorneys tried to fight the constitutionality of the new law, but the Supreme Court declined to hear further challenges. Salim became the second person to be prosecuted by the military commissions (and the first actually tried since David Hicks’ case was resolved in 2007 by a plea bargain agreement).
Although Salim never studied beyond the fourth-grade, his experiences with the post-9/11 legal system provided a rough education with surprisingly sophisticated results. In a voice over we hear a letter he wrote: “International laws are clear. The Constitution is clear. But what laws do you bring against me? I would like the law. I would like justice. Nothing else.”
At a meeting in Yemen for families of Guantánamo prisoners, Lt. Cmdr. Brian Mizer, who joined the team of lawyers defending Salim in the military commissions, addressed the crowd: “I think the problem with Mr. Hamdan’s case…is one of guilt by association. Americans and particularly the American government cannot understand how bin Laden had farmers, had mechanics, had cooks. They see Mr. Hamdan standing next to bin Laden and they assume, therefore, that he must be a terrorist. I look forward to exposing this at the trial.”
At a press conference at Guantánamo after the first day of Salim’s trial, the chief prosecutor, Col. Lawrence Morris, was asked by William Glaberson of the The New York Times: “Isn’t there a sense of embarrassment that your first case is against the lowest possible type of functionary in al-Qaeda?” Morris answers, “No, there is no sense of embarrassment…He is a war criminal. We will establish that he is a war criminal.” In answer to a question from another journalist, Morris says, “We sure welcome you to place the rules of Nuremberg against the rules that we’re following here. You will find these rules to be much more robust, much more friendly to the defense, much more advanced, considerably more due process. In my opinion, [this will be] the most just war crimes trial that anybody has ever seen.” The skeptical expressions on the faces of journalists—the only members of the public who are allowed to attend military commission trials—are telling. Because cameras are barred from the courtrooms and the trial transcripts have not been released, by presenting this press conference footage, The Oath provides a public service.
The trial of Salim Hamdan began on July 21, 2008, and lasted two weeks. On August 6, the six-officer military jury pronounced its verdict. He was found guilty of providing material support for terrorism but was acquitted of the conspiracy charges. The prosecution strategy to make the case for conspiracy had backfired because when they showed a video of the attack and collapse of the Twin Towers, which Salim had never seen, he broke down in tears. The following day, the jury sentenced him to five and a half years and credited him for time served since he arrived at Guantánamo. Five months later, his sentence was up and he was repatriated to Yemen. He has never agreed to give an interview or appear on camera.
There is a postscript to this story which bears upon the current state of the military commissions and the trial of Canadian child soldier Omar Khadr that is underway. Robert Gates, who served as the last Secretary of Defense under the Bush administration and was retained in the role by President Obama, was infuriated that Salim’s military jury had awarded time served when sentencing him—that this “convicted terrorist” is now free. Gates insisted that the time served option be eliminated, as it was, in the Military Commissions Act of 2009 under which Khadr and other Guantánamo prisoners will be prosecuted in the future.
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