When the convicted Bali bomber Imam Samudra was first arrested and interrogated in 2002 he denied any knowledge of Hambali, the Indonesian man who has been accused of orchestrating the attacks that killed 202 people, including 88 Australians.
Imam Samudra was executed by a firing squad in 2008, along with the two brothers Amrozi and Mukhlas, for carrying out the attacks on the Sari nightclub and Paddy’s Bar.
But lawyers for Hambali – who faces a pre-trial hearing at Guantanamo Bay this week – believe Imam Samudra’s testimony could help to prove his innocence, if only they can get their hands on it.
“We know from some public source documents that we have that [Imam Samudra] said he did not really know Hambali and that Hambali had nothing to do with the Bali bombing,” says Hambali’s lead defence counsel Jim Hodes.
“What we don’t know is to what extent either the American police agencies — whether it be the FBI or some military intelligence groups — ever talked to Imam Samudra or Amrozi or [Mukhlas] while they were waiting to be executed, or waiting to be tried.”
However, Indonesian investigators have never had any doubt that Hambali is guilty, and say the evidence against him is compelling.
Now 59, Hambali – whose real name is Encep Nurjaman – is charged with a string of offences relating to the 2002 Bali bombings and the Marriott Hotel bombing in Jakarta the following year, that killed 12 people.
It’s alleged he was the Malaysian head of Jemaah Islamiah, the Al Qaeda-linked terror group that carried out the bombings.
He will appear in court alongside two Malaysian co-accused.
Defence team chasing files across the globe
For months Hambali’s defence team has been seeking access to any records US government prosecutors have in relation to Imam Samudra’s testimony, as well as other investigative case files from Indonesian police or the Australian Federal Police (AFP), who helped investigate the bombings in Bali and Jakarta.
But until now, the US Military Commission has denied the defence team’s motion to gain access to the records, citing prosecutors who argue the documents have either already been provided to the defence or are still undergoing “security review for potential release”.
The Commission also ruled that any documentation not in the US government’s possession has not been supplied by Australian or Indonesian police.
So far it has also suppressed all court documents relating to the request for records of Imam Samudra’s testimony, a cause of great frustration for Mr Hodes.
“They’ve been able to detain our client for 20 years, and they still haven’t finished providing us with discovery,” he said.
“Discovery is one of those things where a prosecutor has that ready to go as soon as the person comes to court. We’re now two years past the arraignment and they’re still seeking additional time to provide us discovery from 20 years ago. It’s ridiculous.”
Mr Hodes says prosecutors have handed over just one report from the AFP, but it relates only to the forensics of the Bali bombing, and not the records of interview or any testimony they may have collected from the convicted bombers.
He says defence lawyers have lodged a request in Australia for AFP files under Freedom of Information laws, but the AFP too has knocked them back.
“When we did this Freedom of Information Act request, we were told that there were so many documents covering the Bali bombing, that it would take a crew of people months to produce the documents for us,” Mr Hodes said.
“So they’ve asked us to narrow our request, which we are in the process of doing.
“The fact that both our government [and] prosecutors are telling us that they don’t have anything, other than this one report, is mind-boggling to say the least.”
Mr Hodes says the defence requests to gain access to testimony or case files held in the US – including any from the AFP – will be among six key motions to be considered at this week’s pre-trial hearing.
“We know that there was a sizeable Australian contingent of police officers that came to Indonesia to investigate this crime,” he said.
“I’m hopeful that we’ll see those reports sooner than later.”
Hambali testimony shared with FBI
Ansyad Mbai is the former head of Indonesia’s counter terror agency, BNPT, and says Hambali admitted his role to investigators after his capture, and police then shared his testimony with the FBI.
“His role was so big, he wasn’t just the mastermind, he executed the plan, and he provided the funding from Al Qaeda, his role was so big, of course he’s guilty,” Mr Mbai said.
“In 1997, Hambali sent Imam Samudra, Noordin Top and Azahari [Husin] to the Philippines to carry out military training. Azahari then trained many other terrorists to make bombs for use in other attacks in Indonesia, including the Marriott Hotel bombing in 2003.
“In December 2001, Hambali met Azahari, Mukhlas and other Bali bombing conspirators in Thailand, and asked them to prepare an attack targeting Western countries, embassies or places which are frequented by foreigners.”
Mr Mbai said Hambali admitted that Al Qaeda provided $US35,000 ($52,270) which he then channelled to Mukhlas.
He said he sent $US50,000 to his brother in Pakistan and $US12,000 to Noordin Top and Azahari.
“That’s important evidence that Hambali was not just the mastermind, but also played a role in funding and directing the terror attacks,” Mr Mbai said.
Other investigators at the time claimed that despite once denying he knew Hambali, Imam Samudra very quickly changed his story when he was confronted with the evidence against him.
Torture, trials and Guantanamo
Hambali was arrested in Thailand less than a year after the Bali bombings, and taken to several CIA black sites, where he was tortured, before being incarcerated at Guantanamo Bay in 2006.
It was later revealed he had endured sleep and food deprivation, forced stress positions and a practice known as ‘walling’, where his head was placed in a collar and repeatedly slammed against a wall.
Mr Hodes says the use of torture means Hambali will never get a fair trial.
“The last thing they want to do is expose the really horrific, horrific actions of the United States government.
“Our government violated a lot of laws. And therefore, it seems like the focus of the military commissions in Guantanamo is to avoid culpability.”
If the case does ever go to trial, Mr Hodes says the defence team may push to have it relocated to Indonesia, where some believe he has a stronger chance of acquittal.
“It would be hard to prove he’s guilty if he were prosecuted in Indonesia,” says Mr Mbai.
“If we brought him to Jakarta, the risk is bigger, he could be freed … why? Because all the key witnesses have been executed. And others have been killed in raids.”
Hambali’s family want the case to stay in the US, where he won’t face the death penalty if he’s found guilty.
But they know if he never goes to trial, he could still spend the rest of his life at Guantanamo Bay.