Salim Hamdan

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Salim Ahmed Hamdan (Arabic: سليم احمد حمدان) (born c. 1970^[1]) is a Yemeni, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. He admits to being Osama bin Laden's personal driver and bodyguard, claiming he needed the $200 monthly salary that came with the job.^[4]

He was charged with "conspiracy and providing material support for terrorism" but a judge declared the judicial system in place at the time unconstitutional and those charges were dropped on June 5, 2007.^[3] He was then held, without being charged, as an enemy combatant. He was brought up on new charges on July 21, 2008, and found guilty of "providing material support" to al Qaeda, but was cleared of terrorism conspiracy charges.^[5] He was sentenced to five-and-a-half years of imprisonment by a military jury, being counted as having already served five years of the sentence at the time. A Pentagon spokesman noted that Hamdan may still be considered an "enemy combatant" upon completing his sentence and detained indefinitely.^[6]

Hamdan's numerous legal efforts, as one of the first detainees at Guantanamo Bay to be given formal charges, have been a focal point for debate and criticism relating to the questions of indefinite detention in the "War on Terror", the ability of Guantanamo Bay detainees to petition for habeas corpus, the validity of military commissions rather than civil trials for alleged terrorists, and the correct implementation of the Geneva Conventions for terrorist suspects. His case was the instigation for the United States Supreme Court decision Hamdan v. Rumsfeld (2006), and his case has been covered by major U.S. news organizations since 2004.

[edit] Capture in Afghanistan

Salim Hamdan was captured in southern Afghanistan on November 24, 2001. According to documents obtained by the Associated Press, he was captured in a car with four other alleged al-Qaeda associates, including Osama bin laden's son-in-law, three of whom were killed in a firefight with Afghan forces. Hamdan and the other surviving associate in the car were later turned over to U.S. forces.^[7]

[edit] Trial timeline

On July 14, 2004, the Department of Defense formally charged Salim Ahmed Hamdan with conspiracy, for trial by military commission under the President’s Order of November 13, 2001.^[8][9]

On November 8, 2004 the United States District Court for the District of Columbia halted Hamdan's military commission because no "competent tribunal" had determined whether Mr Hamdan was a POW (as required by the Geneva Conventions), and because regardless of such determination, the commission violated the Uniform Code of Military Justice (UCMJ).

On October 22, 2004, General John D. Altenburg, the retired officer in overall charge of the commissions, removed three of the six original Military Commission members to avoid the potential of bias.^[10]

The Bush administration appealed the ruling that halted the military commissions. In the meantime, the Department of Defense started Combatant Status Review Tribunals of all the Guantanamo detainees. The tribunals extended from July 2004 through March 2005.

On July 17, 2005, a three-judge panel on the United States Court of Appeals for the District of Columbia Circuit overturned Hamdan's appeal.^[11][12] The panel said that the Geneva Convention does not apply to members of al-Qaida. The military commissions were set back in motion. Supreme Court Chief Justice John Roberts was one of the judges on that panel, and voted against Hamdan's appeal, shortly before being nominated for Chief Justice of the Supreme Court.

On November 7, 2005, the Supreme Court issued a writ of certiorari agreeing to review the decision of the DC Circuit Court.^[13] Roberts recused himself due to his earlier participation in the case.

On June 29, 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions ordered for Hamdan and other detainees violated the UCMJ and the Geneva Convention.^[14]

[edit] Combatant Status Review

Initially the Bush administration asserted they could withhold the protections of the Geneva Conventions from captives in the "War on Terror", while critics argued the Conventions obligated the United States to conduct competent tribunals to determine the status of prisoners. Subsequently, the US Department of Defense instituted Combatant Status Review Tribunals, to determine whether the captives met the new definition of an "enemy combatant".

From July 2004 through March 2005, a CSRT was convened to make a determination whether each captive had been correctly classified as an "enemy combatant". Salim Hamdan was among the two-thirds of prisoners who chose to participate in their tribunals.^[15]

A Summary of Evidence memo was prepared for the tribunal, listing the alleged facts that led to his detainment. His memo accused him of the following: ^[16]

a. Detainee is a member of Al-Qaeda.

Detainee admits that he served as a personal driver to Usama Bin Laden (UBL) both before and after the attacks of September 11, 2001. In addition to serving as UBL's driver, detainee served as a member of UBL's bodyguard detachment and armed himself with a weapon. In the above roles, detainee gained substantial knowledge of al Qaida operations and came in contact with a number of highly placed al Qaida figures, such as Abu Hafs [sic], Saif Al Adel [sic] (al Qaida Security Chief), and Abu Zabaydah [sic]. One of detainee's known aliases was on a list of captured al Qaida members that was discovered on a computer hard drive associated with a senior Al-Qaida member.

b. Detainee engaged in hostilities against the US or its coalition partners.

While detainee denies ever personally receiving training at the Al-Farouq training camp, he admits transporting UBL there, so UBL could provide training and lectures to al Qaida trainees. Detainee was captured in a vehicle by Northern Alliance forces in the vicinity of Kandahar in possession of a weapon.

Hamdan's transcript was nine pages long.^[17] Eight pages of it were consumed with exhausting translation problems, and trying to clarify which documents, sent by Hamdan's lawyer, to Hamdan, should be submitted to the Tribunal.

Hamdan was asked one question -- was he forced to drive for bin Laden, or was he recruited? Hamdan referred the Tribunal to his affidavit.

There is a hand-written note on the final page of his transcript saying that: "affidavits not provided as they are filed under seal in federal court."

Documents show that Hamdan was beaten and threatened by members of the Afghani Northern Alliance after engaging them in combat, but before being handed over to U.S. forces. Once under U.S. custody he was deemed a high ranking terrorist with possible knowledge of Usama Bin Laden's whereabouts. He experienced intense interrogation methods, and was kept in isolation for upwards of eight months.

On July 14, 2004, under congressional AUMF authority the Department of Defense formally referred charges against Hamdan, for trial by military commission under the President’s Order of November 13, 2001. He was charged with terrorist activities including serving as Osama Bin Laden’s personal bodyguard and driver.

Hamdan purchased vehicles for Bin Laden’s security detail which were used to evade capture after the attacks on September 11, 2001 and delivered weapons to al Qaeda members after U.S. military operations began in Afghanistan.

[edit] Supreme Court opinion

Main article: Hamdan v. Rumsfeld

On June 29, 2006, the Supreme Court delivered its opinion in Hamdan v. Rumsfeld. Justice Roberts recused himself due to earlier participation in the case as a judge on the DC circuit court prior to his nomination for chief justice. The case also considered whether the Supreme Court had the jurisdiction to enforce the articles of the 1949 Geneva convention and whether Congress had the power to prevent the Court from reviewing the case of an accused enemy combatant before his military commission. In a 5-3 plurality, the Court held that the military commisions which were established to try the detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."^[18] The ruling specifies Common Article 3 of the Third Geneva Convention as the provision that was violated.

In response to the Supreme Court decision, Congress passed the Military Commissions Act of 2006, in an attempt grant the President the necessary authority to create the commissions. Hamdan's trial is scheduled to begin in June 2006.

[edit] Charged under the Military Commissions Act

New charges were laid against Hamdan on May 10, 2007.^[19]

Further information: Military Commissions Act

Hamdan is charged with conspiracy and providing support for terrorism.^[19] According to the Houston Chronicle, Lieutenant Commander Charles Swift, Hamdan's lawyer, argued that conspiracy charges were inappropriate for junior people like Hamdan. According to the Houston Chronicle, Commander Jeffrey Gordon, a DoD spokesman, disputed the assertion that Hamdan was just a low-level player.

[edit] Charges dismissed

In two separate rulings all charges were dropped against Hamdan and Canadian youth Omar Khadr, on the 4th June 2007.^[20][21] Army Judge Colonel Peter Brownback, and US Navy Judge Captain Keith J. Allred, ruled that the men's Combatant Status Review Tribunals had merely confirmed the men's enemy combatants status; while the Military Commissions Act only gave the Guantanamo Military Commissions the authority to try "unlawful enemy combatants", they lacked the jurisdiction to try the men. James Westhead of the BBC said that the court ruling, which affects all 380 Guantanamo inmates, represents a "stunning blow" against the Bush administrations efforts at bringing the inmates to trial.^[22]

According to the BBC, following the rulings, the US government appears to have three legal options open to it:^[22]

According to the Washington Post the ruling made more likely the passage of a Senate bill restoring access to the US Court system to the Guantanamo captives.^[21] The Washington Post speculated that the ruling might force whatever trials take place to take place in the civilian court system, or in the already established military courts martial system.

[edit] Deemed an "illegal enemy combatant"

On December 21, 2007 Allred heard arguments, and made his ruling, that Hamdan was an "illegal enemy combatant", who could be tried by a military commission.^[23]Lieutenant Brian Mizer, one of Hamdan's lawyers, said his team had introduced evidence that:

[edit] February 8, 2008 hearing

A hearing was convened on February 8, 2008.^[24]

[edit] Mental stability

Hamdan's lawyers have filed a request with Allred requesting he be moved from solitary confinement.^[25][26][27] They argue that solitary confinement is having such a negative impact on his mental stability that it is impairing his ability to assist in his own defense.

Andrea Prasow wrote:

His attorneys say he had only been allowed two exercise periods in the previous month.^[25]

Hamdan had been housed in camp 4, the camp for the most compliant captives until December 2006.^[25] Captives in camp 4 wear white uniforms, sleep in communal dormitories and can use an exercise yard and mingle with other captives for up to 20 hours a day. Hamdan was moved to camp 5, where captives spend almost the entire day in isolation in a windowless cell.

Emily Keram, a psychologist examined Hamdan and, according to the Seattle Post Intelligencer:

Hamdan's lawyers compared the treatment accorded to Omar Khadr with that accorded to Hamdan. They have requested Khadr appear before Allred to explain why he was housed in Camp Four. They pointed out that Khadr had been allowed a phone call to his family.

According to the International Herald Tribune, his lawyers said

^[28]

[edit] Missing records

Hamdan's Defense expressed a concern that the Prosecution had been withholding some of Hamdan's records from them.^[24]Lieutenant Commander Timothy Stone told Allred that they had turned over copies of records, except for those from 2002 -- which they had been unable to locate. However, he assured Allred they were still looking for them.

Chief Prosecutor Colonel Lawrence Morris guessed that the missing files contained "generally innocuous stuff"^[24]:

[edit] Access to the high value detainees

Hamdan's lawyers requested access to Khalid Sheikh Mohammed and the other thirteen high value detainees.^[24] Chief Prosecutor Morris replied:

Allred postponed ruling on Hamdan's lawyer's request.^[29]

[edit] Boycott

On April 29, after seven years of cooperation, Hamdan announced he was joining the on-going Boycott of Guantanamo Military Commissions, stating "America tells the whole world that it has freedom and justice. I do not see that...There are almost 100 detainees here. We do not see any rights. You do not give us the least bit of humanity...Give me a just court...Try me with a just law.'"^[30]

[edit] July hearings

Hamdan's actual trial began on July 21, 2008.^[31][32] On July 26, the New York Times reported that "Mr. Hamdan's offenses are not enumerated anywhere, but appear to include checking the oil and the tire pressure."^[33][34]Matt Bors, a syndicated editorial cartoonist, lampooned the Government's case against Hamdam, as an attempt to "destroy Bin laden's vast network of enablers," which included "drivers, wives, landlords and those to feed him," as well as "his tailor."^[34]

[edit] Jury selection

Thirteen candidates for the jury went through voir dire.^[35] Five jury members, and an alternate, were selected on July 21, 2008.^[32]

Reuters reports that the jurors identities were being kept secret.^[36] Reuters reports that a juror who was working in the Pentagon during al Qaeda's attack on the Pentagon was turned down for jury duty.

Another officer who knew the Captain of the USS Cole was also turned down. Reuters reported he was a former police officer, and quoted him as saying:

"I believe in law and order. I believe in justice." "I believe that in our line of work, people get hurt and people get killed. It's what we do."

Another officer who was worried about a good friend who was working in the Pentagon was accepted.

[edit] Innocence plea

Hamdan pled not guilty to all charges.^[37]

[edit] Evidence from coercive testimony proscribed

According to USA Today Hamdan's Presiding Officer, Keith Allred, ruled that Prosecutors could not use confessions he made when in American custody in Bagram Theater Internment Facility and a detention facility in Panjshir, because he was subjected to coercive interrogation techniques.^[31][35] According to the Washington Post Chief Prosecutor Lawrence Morris responded to the ruling by saying:

[edit] Allegations of responsibility

Carol Rosenberg, writing in the Miami Herald, reported that on Monday July 28, 2008 Prosecution witnesses^[38]:

[edit] Role of Abdellah Tabarak

On July 24, 2008 Michael St. Ours, a Naval Criminal Investigative Service agent, testified that Abdellah Tabarak had been in charge of Osama bin Laden's security detail.^[39] According to Carol Rosenberg of the Miami Herald St Ours "looked stunned" when Hamdan's Defense Counsel asked him if he knew that Tabarak had been released without charge.^[40]Andrew Cohen, a legal affairs commentator for CBS News, called the testimony that Tabarak had been released a "colossal embarrassment".^[41] He commented:

[edit] Sexual humiliation

Hamdan's Prosecution had failed to comply with a ruling from the Presiding Officer to hand over documents from Hamdan's interrogations until July 28, 2008.^[42] On July 31, 2008 the New York Times reported that Hamdan's lawyers found a document from one of his interrogators that confirmed Hamdan's account that female interrogators had subjected him to sexual interrogation. Harry H. Schneider Jr., said that after reading this document Hamdan's account of sexual humiliation was “right on the moneyâ€. Prosecutor John Murphy disputed that what the interrogation document described should be described as coercion. He stated:

[edit] Robert McFadden's testimony that Hamdan swore an oath of fealty to Bin Laden

There was controversy over whether former FBI agent Robert McFadden's testimony would be allowed.^[43]

The Presiding Officer had already ruled that the testimony of most of Hamdan's first interrogators was inadmissible, due to the use of coercion.^[44] On July 29, 2008 The Presiding Officer ruled that he was going to penalize the Prosecution for falling to release documents to the Defense by disallowing McFadden's testimony.^[45]

The key testimony expected from McFadden was that he heard Hamdan confirm that he had sworn "bayat", a kind of oath of fealty, to Osama Bin Laden.^[43]

Allred decided to allow McFadden's testimony.^[46]

[edit] Sentencing

On August 7, 2008, Hamdan was sentenced by the military jury to five and a half years (66 months) imprisonment. Prosecutors had urged a sentence of 30 years-to-life, while Hamdan's defense had recommended less than 45 months. At the time he was already credited for serving 61 months, meaning his sentence imposed only five months additional imprisonment. A Pentagon spokesman noted that Hamdan's status could revert to "enemy combatant" after his sentence was served, and as such he could be indefinitely detained.^[47]

Allred, the Presiding Officer of his Commission, called Hamdan a "small player," and stated this sentence meant Hamdan would be eligible to having his continued detention reviewed by an Administrative Review Board when his sentence was over.^[48][49] He told Hamdan:

"I hope the day comes that you return to your wife and daughters and your country, and you're able to be a provider, a father and a husband in the best sense of all those terms."

Former Chief Prosecutor Morris Davis commented^[49]:

"The decision showed what the jury thought Hamdan was worth." "Hamdan would be the two of clubs." "There is a perception that trying people in front of the military was going to be a rubber-stamp process. This shows they are conscientious, following instructions and are making rational decisions."

According to the Associated Press former Deputy Assistant Secretary of Defense for Detainee Affairs Charles "Cully" Stimson's reaction to the sentence was^[50]: The Associated Press reported that Stimson sent an e-mail about Hamdan's conviction that said:

"The lesson I hope the government learns from this case, amongst other things, is ... don't bring skimpy or weak charges of conspiracy."

The American Civil Liberties Union's spokesman Ben Wizner, said^[50]:

"If the government heard the jury's message, it will not use a flawed war court to prosecute conduct that does not violate the laws of war."

On August 10, 2008 Josh White, writing in the Washington Post reported that Hamdan Prosecution and Defense had discussed a plea deal in late 2006.^[51] He reported that Charles "Cully" Stimson, who was then the Deputy Assistant Secretary of Defense for Detainee Affairs, had agreed to make a case for a negotiated sentence of ten years. According to White Stimson said more senior Bush officials "were stubborn" and "rejected the notion of a 'mere 10 years.'" Bush administration officials had rejected the idea of a ten year sentence as too lenient.

On August 11, 2008 Jess Bravin of the Wall Street Journal reported on interviews with one of Hamdan's jurors.^[52] Bravin reported that the juror said the verdict was not intended to be a rebuke to the Bush administration, rather, "...it came down to the evidence that we were allowed to see."

On September 26, 2008 Lawrence Morris, Guantanamo's Chief Prosecutor asked for a new sentencing hearing for Hamdan.^[53] Morris has requested Hamdan not be granted credit for time served, and should thus serve a further six years. The Department of Defense argues that they can continue to hold the captives who receive sentences from the Military Commissions, even after their sentences are over.

[edit] References