Salim Ahmed Hamdan
Encyclopedia
Salim Ahmed Hamdan (born 1970) is a Yemen
i man, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay
. He admits to being Osama bin Laden
's personal driver
claiming he needed the $200 monthly salary that came with the job.
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. 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. 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. Despite the threat to detain him indefinitely, the U.S.
in November 2008 transferred him to Yemen
to serve out the remainder of his sentence.
He was released January 8, 2009 to live with his family in Sana.
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.
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.
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.
The Bush administration appealed the ruling that halted the military commissions. In the meantime, the Department of Defense started Combatant Status Review Tribunal
s 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.
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. 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.
and the four Geneva Conventions
signed in 1949." 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.
Hamdan is charged with conspiracy and "providing support for terrorism".
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.
youth Omar Khadr
, on the 4th June 2007.
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 administration's efforts at bringing the inmates to trial.
According to the BBC, following the rulings, the US government appears to have three legal options open to it:
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.
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.
Lieutenant
Brian Mizer, one of Hamdan's lawyers, said his team had introduced evidence that:
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.
Hamdan had been housed in camp 4, the camp for the most compliant captives until December 2006. 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 psychiatrist
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
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":
Chief Prosecutor Morris replied:
Allred postponed ruling on Hamdan's lawyer's request.
, 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."
ist, 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."
.
Six jury members, and an alternate, were selected on July 21, 2008.
Reuters
reports that the jurors identities were being kept secret.
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 was also turned down.
Reuters reported he was a former police officer, and quoted him as saying:
Another officer who was worried about a good friend who was working in the Pentagon was accepted.
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
.
According to the Washington Post Chief Prosecutor Lawrence Morris
responded to the ruling by saying:
, writing in the Miami Herald, reported that on Monday July 28, 2008 Prosecution witnesses:
Naval Criminal Investigative Service
agent,
testified that Abdellah Tabarak had been in charge of Osama bin Laden's security detail.
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.
Andrew Cohen, a legal affairs commentator for CBS News
, called the testimony that Tabarak had been released a "colossal embarrassment".
He commented:
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 money”.
Prosecutor John Murphy disputed that what the interrogation document described should be described as coercion. He stated:
The Presiding Officer had already ruled that the testimony of most of Hamdan's first interrogators was inadmissible, due to the use of coercion.
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.
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.
Allred decided to allow McFadden's testimony.
was allowed a call home, on August 6, 2008, after his Guantanamo Military Commission
acquitted him of conspiracy and convicted him of material support for terrorism, his was the 107th call.
" after his sentence was served, and as such he could be indefinitely detained.
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.
He told Hamdan:
Former Chief Prosecutor Morris Davis
commented:
According to the Associated Press
former Deputy Assistant Secretary of Defense for Detainee Affairs
Charles "Cully" Stimson's reaction to the sentence was:
The Associated Press
reported that Stimson sent an e-mail about Hamdan's conviction that said:
The American Civil Liberties Union
's spokesman Ben Wizner, said:
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.
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.
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.
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.
Hamdan's military lawyer, Lt. Cmdr. Brian Mizer]] said:
On 31 October 2008 Allred ruled that Hamdan's sentence would not be reconsidered.
Chuck Schmitz, one of Hamdan's translators in Guantanamo, has been approached to co-write a book with Hamdan, about his experiences.
Schmitz was a Fulbright Scholar when he was approached to translate for Hamdan in 2004, and is now a Professor at Towson University
.
Yemen
The Republic of Yemen , commonly known as Yemen , is a country located in the Middle East, occupying the southwestern to southern end of the Arabian Peninsula. It is bordered by Saudi Arabia to the north, the Red Sea to the west, and Oman to the east....
i man, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay
Guantanamo Bay detainment camp
The Guantanamo Bay detention camp is a detainment and interrogation facility of the United States located within Guantanamo Bay Naval Base, Cuba. The facility was established in 2002 by the Bush Administration to hold detainees from the war in Afghanistan and later Iraq...
. He admits to being Osama bin Laden
Osama bin Laden
Osama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
's personal driver
Chauffeur
A chauffeur is a person employed to drive a passenger motor vehicle, especially a luxury vehicle such as a large sedan or limousine.Originally such drivers were always personal servants of the vehicle owner, but now in many cases specialist chauffeur service companies, or individual drivers provide...
claiming he needed the $200 monthly salary that came with the job.
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. 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. 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
Enemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
" upon completing his sentence and detained indefinitely. Despite the threat to detain him indefinitely, the U.S.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in November 2008 transferred him to Yemen
Yemen
The Republic of Yemen , commonly known as Yemen , is a country located in the Middle East, occupying the southwestern to southern end of the Arabian Peninsula. It is bordered by Saudi Arabia to the north, the Red Sea to the west, and Oman to the east....
to serve out the remainder of his sentence.
He was released January 8, 2009 to live with his family in Sana.
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
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
", the ability of Guantanamo Bay detainees to petition for habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, the validity of military commissions
Guantanamo military commission
The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...
rather than civil trials for alleged terrorists, and the correct implementation of the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
for terrorist suspects. His case was the instigation for the United States Supreme Court decision Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
(2006), and his case has been covered by major U.S. news organizations since 2004.
Capture in Afghanistan
Salim Hamdan was captured in southern AfghanistanAfghanistan
Afghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
on November 24, 2001. According to documents obtained by the Associated Press
Associated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
, he was captured in a car with four other alleged al-Qaeda
Al-Qaeda
Al-Qaeda is a global broad-based militant Islamist terrorist organization founded by Osama bin Laden sometime between August 1988 and late 1989. It operates as a network comprising both a multinational, stateless army and a radical Sunni Muslim movement calling for global Jihad...
associates, including Osama bin laden
Osama bin Laden
Osama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
's son-in-law
Son-in-Law
Son-in-Law was a British Thoroughbred racehorse and an influential sire, especially for sport horses.The National Horseracing Museum says that Son-in-Law is "probably the best and most distinguished stayer this country has ever known." Described as "one of the principal influences for stamina in...
, 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.
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.On November 8, 2004 the United States District Court for the District of Columbia
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
halted Hamdan's military commission because no "competent tribunal
Competent tribunal
Competent Tribunal is a term used Article 5 paragraph 2 of the Third Geneva Convention, which states:-ICRC commentary on competent tribunals:...
" had determined whether Mr Hamdan was a POW (as required by the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
), and because regardless of such determination, the commission violated the Uniform Code of Military Justice
Uniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
(UCMJ).
On October 22, 2004, General
General
A general officer is an officer of high military rank, usually in the army, and in some nations, the air force. The term is widely used by many nations of the world, and when a country uses a different term, there is an equivalent title given....
John D. Altenburg
John D. Altenburg
Major General John D. Altenburg Jr. is a former Green Beret and a lawyer for the U.S. Army. In December 2003,...
, the retired officer in overall charge of the commissions, removed three of the six original Military Commission members to avoid the potential of bias.
The Bush administration appealed the ruling that halted the military commissions. In the meantime, the Department of Defense started Combatant Status Review Tribunal
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
s 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
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
overturned Hamdan's appeal.
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
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
Chief Justice
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...
John Roberts was one of the judges on that panel, and voted against Hamdan's appeal, shortly before being nominated for Chief Justice
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...
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. Roberts recused himself due to his earlier participation in the case.
On June 29, 2006, the Supreme Court ruled in Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
that the military commissions ordered for Hamdan and other detainees violated the UCMJ and the Geneva Convention.
Supreme Court opinion
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 commissions 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 JusticeUniform Code of Military Justice
The Uniform Code of Military Justice , is the foundation of military law in the United States. It is was established by the United States Congress in accordance with the authority given by the United States Constitution in Article I, Section 8, which provides that "The Congress shall have Power . ....
and the four Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
signed in 1949." 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
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
, in an attempt grant the President the necessary authority to create the commissions. Hamdan's trial is scheduled to begin in June 2006.
Charged under the Military Commissions Act
New charges were laid against Hamdan on May 10, 2007.Hamdan is charged with conspiracy and "providing support for terrorism".
According to the Houston Chronicle
Houston Chronicle
The Houston Chronicle is the largest daily newspaper in Texas, USA, headquartered in the Houston Chronicle Building in Downtown Houston. , it is the ninth-largest newspaper by circulation in the United States...
, Lieutenant Commander
Lieutenant Commander
Lieutenant Commander is a commissioned officer rank in many navies. The rank is superior to a lieutenant and subordinate to a commander...
Charles Swift
Charles Swift
Charles D. Swift is a former Lieutenant Commander in the U.S. Navy, Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. During the course of his Navy career, he was assigned to the Department of Defense Office of Military Commissions. He is...
, Hamdan's lawyer, argued that conspiracy charges were inappropriate for junior people like Hamdan.
According to the Houston Chronicle
Houston Chronicle
The Houston Chronicle is the largest daily newspaper in Texas, USA, headquartered in the Houston Chronicle Building in Downtown Houston. , it is the ninth-largest newspaper by circulation in the United States...
, Commander
Commander
Commander is a naval rank which is also sometimes used as a military title depending on the individual customs of a given military service. Commander is also used as a rank or title in some organizations outside of the armed forces, particularly in police and law enforcement.-Commander as a naval...
Jeffrey Gordon
Jeffrey D. Gordon
Jeffrey D. Gordon is a communications consultant to several conservative Washington, DC-based think tanks. Gordon is also a contributing columnist to Fox News, AOL News, the Washington Times and other media outlets. Previously, he was a Commander in the United States Navy.-Naval career:He was...
, a DoD spokesman, disputed the assertion that Hamdan was just a low-level player.
Charges dismissed
In two separate rulings all charges were dropped against Hamdan and CanadianCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
youth Omar Khadr
Omar Khadr
Omar Ahmed Khadr is a Canadian child soldier and one of the juveniles held at the Guantanamo Bay detention camp. He was convicted of five charges under the United States Military Commissions Act of 2009 including murder in violation of the law of war and providing material support for terrorism,...
, on the 4th June 2007.
Army Judge Colonel Peter Brownback
Peter Brownback
Peter E. Brownback III is a retired military officer and lawyer.He was appointed to be a Presiding Officer on the Guantanamo military commissions, by retired general John D. Altenburg....
, and US Navy Judge Captain Keith J. Allred
Keith J. Allred
-Early Life and Career:Allred entered the Navy in 1979. He received his juris doctorate in 1985 from the University of Washington. He served in the U.S...
, ruled that the men's Combatant Status Review Tribunals had merely confirmed the men's enemy combatants status; while the Military Commissions Act
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
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 administration's efforts at bringing the inmates to trial.
According to the BBC, following the rulings, the US government appears to have three legal options open to it:
- Scrap the legal process and start again.
- Redefine the inmates as "unlawful" enemy combatants at a separate hearing.
- Appeal the court ruling. But there is no appeals court, the "military commission review" has not been set up yet.
According to the Washington Post the ruling made more likely the passage of a Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
bill restoring access to the US Court system to the Guantanamo captives.
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.
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.Lieutenant
Lieutenant
A lieutenant is a junior commissioned officer in many nations' armed forces. Typically, the rank of lieutenant in naval usage, while still a junior officer rank, is senior to the army rank...
Brian Mizer, one of Hamdan's lawyers, said his team had introduced evidence that:
Mental stability
Hamdan's lawyers have filed a request with Allred requesting he be moved from solitary confinement.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.
Hamdan had been housed in camp 4, the camp for the most compliant captives until December 2006. 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 psychiatrist
Psychiatrist
A psychiatrist is a physician who specializes in the diagnosis and treatment of mental disorders. All psychiatrists are trained in diagnostic evaluation and in psychotherapy...
examined Hamdan and, according to the Seattle Post Intelligencer:
Hamdan's lawyers compared the treatment accorded to Omar Khadr
Omar Khadr
Omar Ahmed Khadr is a Canadian child soldier and one of the juveniles held at the Guantanamo Bay detention camp. He was convicted of five charges under the United States Military Commissions Act of 2009 including murder in violation of the law of war and providing material support for terrorism,...
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
International Herald Tribune
The International Herald Tribune is a widely read English language international newspaper. It combines the resources of its own correspondents with those of The New York Times and is printed at 38 sites throughout the world, for sale in more than 160 countries and territories...
, his lawyers said
Missing records
Hamdan's Defense expressed a concern that the Prosecution had been withholding some of Hamdan's records from them.Lieutenant Commander
Lieutenant Commander
Lieutenant Commander is a commissioned officer rank in many navies. The rank is superior to a lieutenant and subordinate to a 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
Colonel
Colonel , abbreviated Col or COL, is a military rank of a senior commissioned officer. It or a corresponding rank exists in most armies and in many air forces; the naval equivalent rank is generally "Captain". It is also used in some police forces and other paramilitary rank structures...
Lawrence Morris
Lawrence Morris
Colonel Lawrence J. Morris is a lawyer and an officer in the United States Army.-Academic career:Morris graduated from Marquette University's law school in 1982.Morris had previously earned a double major at Marquette in Political Science and Journalism....
guessed that the missing files contained "generally innocuous stuff":
Access to the high value detainees
Hamdan's lawyers requested access to Khalid Sheikh Mohammed and the other thirteen high value detainees.Chief Prosecutor Morris replied:
Allred postponed ruling on Hamdan's lawyer's request.
Boycott
On April 29, after seven years of cooperation, Hamdan announced he was joining the on-going Boycott of Guantanamo Military CommissionsBoycott of Guantanamo Military Commissions
In 2006, after charges were laid against a number of detainees held in the Guantanamo Bay detention camps, a boycott against the judicial hearings was declared by Ali al-Bahlul...
, 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."
July hearings
Hamdan's actual trial began on July 21, 2008. 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." Matt Bors, a syndicated editorial cartoonEditorial cartoon
An editorial cartoon, also known as a political cartoon, is an illustration containing a commentary that usually relates to current events or personalities....
ist, 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."
Jury selection
Thirteen candidates for the jury went through voir direVoir dire
Voir dire is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth , i.e., to say what is true, what is objectively accurate or subjectively honest, or both....
.
Six jury members, and an alternate, were selected on July 21, 2008.
Reuters
Reuters
Reuters is a news agency headquartered in New York City. Until 2008 the Reuters news agency formed part of a British independent company, Reuters Group plc, which was also a provider of financial market data...
reports that the jurors identities were being kept secret.
Reuters reports that a juror who was working in the Pentagon
The Pentagon
The Pentagon is the headquarters of the United States Department of Defense, located in Arlington County, Virginia. As a symbol of the U.S. military, "the Pentagon" is often used metonymically to refer to the Department of Defense rather than the building itself.Designed by the American architect...
during al Qaeda's attack on the Pentagon
American Airlines Flight 77
American Airlines Flight 77 was American Airlines' daily scheduled morning transcontinental flight, from Washington Dulles International Airport, in Dulles, Virginia to Los Angeles International Airport in Los Angeles, California...
was turned down for jury duty.
Another officer who knew the Captain of the was also turned down.
Reuters reported he was a former police officer, and quoted him as saying:
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Another officer who was worried about a good friend who was working in the Pentagon was accepted.
Evidence from coercive testimony proscribed
According to USA TodayUSA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
Hamdan's Presiding Officer
Presiding Officer (Guantanamo Military Commissions)
The United States of America has charged Guantanamo captives before "Military Commissions", each presided over by a Presiding Officer.The Presiding Officer were initially to serve as the first among equals on bodies were the commission members served the roles similar to both judge and jury.In the...
, Keith Allred, ruled that Prosecutors could not use confessions he made when in American custody in Bagram Theater Internment Facility
Bagram Theater Internment Facility
The Parwan Detention Facility , also called the Bagram Theater Internment Facility, is a United States-run prison located next to Bagram Airfield in the Parwan Province of Afghanistan.It was formerly known as the Bagram Collection Point...
and a detention facility in Panjshir
Panjshir
Panjshir may refer to:* Panjshir Valley* Panjshir Province* Panjshir River...
, because he was subjected to coercive interrogation techniques
Enhanced interrogation techniques
Enhanced interrogation techniques or alternative set of procedures are terms adopted by the George W. Bush administration in the United States to describe certain severe interrogation methods, often described as torture...
.
According to the Washington Post Chief Prosecutor Lawrence Morris
Lawrence Morris
Colonel Lawrence J. Morris is a lawyer and an officer in the United States Army.-Academic career:Morris graduated from Marquette University's law school in 1982.Morris had previously earned a double major at Marquette in Political Science and Journalism....
responded to the ruling by saying:
Allegations of responsibility
Carol RosenbergCarol Rosenberg
Carol Rosenberg is a senior journalist, currently with the McClatchy News Service.Rosenberg works at the Miami Herald, which has provided extensive coverage of the operation of the Guantanamo Bay detention camps, in Cuba.-Biography:...
, writing in the Miami Herald, reported that on Monday July 28, 2008 Prosecution witnesses:
Role of Abdellah Tabarak
On July 24, 2008 Michael St. Ours, aNaval Criminal Investigative Service
Naval Criminal Investigative Service
The United States Naval Criminal Investigative Service is the primary security, counter-intelligence, counter-terrorism, and law enforcement agency of the United States Department of the Navy...
agent,
testified that Abdellah Tabarak had been in charge of Osama bin Laden's security detail.
According to Carol Rosenberg
Carol Rosenberg
Carol Rosenberg is a senior journalist, currently with the McClatchy News Service.Rosenberg works at the Miami Herald, which has provided extensive coverage of the operation of the Guantanamo Bay detention camps, in Cuba.-Biography:...
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.
Andrew Cohen, a legal affairs commentator for CBS News
CBS News
CBS News is the news division of American television and radio network CBS. The current chairman is Jeff Fager who is also the executive producer of 60 Minutes, while the current president of CBS News is David Rhodes. CBS News' flagship program is the CBS Evening News, hosted by the network's main...
, called the testimony that Tabarak had been released a "colossal embarrassment".
He commented:
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.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 money”.
Prosecutor John Murphy disputed that what the interrogation document described should be described as coercion. He stated:
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.The Presiding Officer had already ruled that the testimony of most of Hamdan's first interrogators was inadmissible, due to the use of coercion.
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.
The key testimony expected from McFadden was that he heard Hamdan confirm that he had sworn "bayat
Bayat
The surname Bayat or Baiyat is derived from clans in Iran and Afghanistan.-Clans:Bayat is the name of an originally Turkic clan in Iran which traces its origin to the 12th century...
", a kind of oath of fealty, to Osama Bin Laden.
Allred decided to allow McFadden's testimony.
Phone Call
When Salim Ahmed HamdanSalim Ahmed Hamdan
Salim Ahmed Hamdan is a Yemeni man, captured during the invasion of Afghanistan, and imprisoned at Guantanamo Bay. He admits to being Osama bin Laden's personal driver claiming he needed the $200 monthly salary that came with the job....
was allowed a call home, on August 6, 2008, after his Guantanamo Military Commission
Guantanamo military commission
The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...
acquitted him of conspiracy and convicted him of material support for terrorism, his was the 107th call.
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 combatantEnemy combatant
Enemy combatant is a term historically referring to members of the armed forces of the state with which another state is at war. Prior to 2008, the definition was: "Any person in an armed conflict who could be properly detained under the laws and customs of war." In the case of a civil war or an...
" after his sentence was served, and as such he could be indefinitely detained.
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
Administrative Review Board
The Administrative Review Board is a United States military body that conducts an annual review of the suspects held by the United States in Camp Delta in the United States Navy base at Guantanamo Bay, Cuba....
when his sentence was over.
He told Hamdan:
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Former Chief Prosecutor Morris Davis
Morris Davis
Colonel Morris D. Davis is a United States Air Force officer and lawyer, was appointed to serve as the third Chief Prosecutor in the Guantanamo military commissions....
commented:
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According to the Associated Press
Associated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
former Deputy Assistant Secretary of Defense for Detainee Affairs
Deputy Assistant Secretary of Defense for Detainee Affairs
The Deputy Assistant Secretary of Defense for Detainee Affairs is a political appointment created by United States President George W. Bush. The appointee has responsibility for captives apprehended during the "war on terror"....
Charles "Cully" Stimson's reaction to the sentence was:
The Associated Press
Associated Press
The Associated Press is an American news agency. The AP is a cooperative owned by its contributing newspapers, radio and television stations in the United States, which both contribute stories to the AP and use material written by its staff journalists...
reported that Stimson sent an e-mail about Hamdan's conviction that said:
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The American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
's spokesman Ben Wizner, said:
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On August 10, 2008 Josh White
Josh White (journalist)
Josh White is an American journalist.White writes for the Washington Post, but has been published in various publications, including the Los Angeles Times and The Guardian.He is also invited to serve as a commentator on Radio and Television....
, writing in the Washington Post reported that Hamdan Prosecution and Defense had discussed a plea deal in late 2006.
He reported that Charles "Cully" Stimson, who was then the Deputy Assistant Secretary of Defense for Detainee Affairs
Deputy Assistant Secretary of Defense for Detainee Affairs
The Deputy Assistant Secretary of Defense for Detainee Affairs is a political appointment created by United States President George W. Bush. The appointee has responsibility for captives apprehended during the "war on terror"....
, 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.
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
Lawrence Morris
Colonel Lawrence J. Morris is a lawyer and an officer in the United States Army.-Academic career:Morris graduated from Marquette University's law school in 1982.Morris had previously earned a double major at Marquette in Political Science and Journalism....
, Guantanamo's Chief Prosecutor asked for a new sentencing hearing for Hamdan.
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.
Hamdan's military lawyer, Lt. Cmdr. Brian Mizer]] said:
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On 31 October 2008 Allred ruled that Hamdan's sentence would not be reconsidered.
Return to Yemen
In November 2008, Hamdan was transferred to Yemen to serve out the remaining month of his sentence. His family were not allowed to meet him at Sanaa International Airport.Chuck Schmitz, one of Hamdan's translators in Guantanamo, has been approached to co-write a book with Hamdan, about his experiences.
Schmitz was a Fulbright Scholar when he was approached to translate for Hamdan in 2004, and is now a Professor at Towson University
Towson University
Towson University, often referred to as TU or simply Towson for short, is a public university located in Towson in Baltimore County, Maryland, U.S...
.
External links
- Full military court to review appeal of bin Laden's driver
- Lawyers Appeal Guantánamo Trial Convictions Andy WorthingtonAndy WorthingtonAndy Worthington is a British historian, journalist, and film director.He has published three books, and been published in numerous publications.In 2009 Worthington was the co-director of a documentary about the Guantanamo detainees....
February 1, 2010 - Testimony of Dr. Emily A. Keram about Salim Ahmed Hamdan
- Charge Sheets (.pdf), Department of DefenseUnited States Department of DefenseThe United States Department of Defense is the U.S...
- Commissions Transcripts, Exhibits, and Allied Papers, Department of DefenseUnited States Department of DefenseThe United States Department of Defense is the U.S...
- Commission Scheduling, Department of DefenseUnited States Department of DefenseThe United States Department of Defense is the U.S...
- Detailed January 8, 2006, New York Times article on Hamdan case.
- Justice System For Detainees Is Moving At a Crawl Washington Post May 6, 2008
- DC District Court Ruling on War Crimes Trial Motion (July 2008) mirror
- Hamdan sentenced to 5 years msnbcMSNBCMSNBC is a cable news channel based in the United States available in the US, Germany , South Africa, the Middle East and Canada...
August 7, 2008 - A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict Andy Worthington August 6, 2008