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In the Courts
The Case of Salim Ahmed Hamdan
Salim Ahmed Hamdan, a Yemeni national, was captured by Afghan forces and handed over to the U.S. military in Afghanistan in late 2001. He has been held at the U.S. Naval Base at Guantánamo Bay, Cuba since early 2002. Hamdan alleges that, while in U.S. custody, he was beaten, threatened and kept in isolation for upwards of eight months.
Hamdan is accused of serving as Osama bin Laden's bodyguard and personal driver. The government has also accused Hamdan of delivering weapons to al Qaeda members and purchasing vehicles for bin Laden's security detail.
On July 14, 2004, the Department of Defense formally referred charges against Hamdan for trial by military commission. Commission proceedings began in August 2004, and Hamdan was designated an "enemy combatant" by a Combatant Status Review Tribunal ("CSRT") on October 3, 2004.
Proceedings against Hamdan were abruptly halted, however, in November 2004 when a U.S. federal court in Washington, D.C. ruled the commissions unlawful. An appeals court reversed that finding, and Hamdan sought review from the U.S. Supreme Court.
In a 5-3 decision on June 29, 2006, the Supreme Court in Hamdan v. Rumsfeld held that the President had exceeded his authority in establishing the military commissions. The Court also ruled that the commissions violated U.S. military law and the Geneva Conventions, which are international treaties signed and ratified by the United States and thus U.S. federal law.
Following the Supreme Court's decision in Hamdan, Congress passed the Military Commissions Act of 2006 ("MCA"), which established new military commission procedures. Hamdan challenged the new procedures in court, arguing that they violate the U.S. Constitution's due process and equal protection requirements, among others. But in October 2007, the Supreme Court declined to review Hamdan's constitutional challenge.
On May 10, 2007, the Convening Authority referred a second set of charges against Hamdan -- this time under the 2006 MCA -- for conspiracy and providing material support for terrorism. On June 4, 2007, however, the presiding judge, U.S. Navy Captain Keith J. Allred, dismissed the charges for lack of jurisdiction because Hamdan had not been designated an "unlawful enemy combatant" by the CSRT in 2004. The CSRT had found that Hamdan was an "enemy combatant," but it had not determined whether Hamdan was a "lawful" or "unlawful" combatant.
Shortly thereafter, the government moved to reconsider Captain Allred's decision. In October 2007, relying on a ruling in another case by the Court of Military Commission Review ("CMCR") holding that military commission judges are authorized to make enemy combatant designations, Captain Allred accepted the government's request and agreed to reconsider the jurisdictional issue.
Proceedings against Hamdan continued in December 2007, when the defense moved for an Article 5 hearing under the Geneva Conventions to determine whether Hamdan qualified for Prisoner of War ("POW") status. Captain Allred took the defense request for an Article 5 hearing under consideration, but moved forward on the jurisdictional issue, holding an evidentiary hearing on the question of whether Hamdan qualified as an "unlawful enemy combatant." Several witnesses testified at the hearing, including an FBI agent who stated that Hamdan had admitted during FBI interrogations to having served as bin Laden's driver. No evidence was presented showing that Hamdan had any operational knowledge of the USS Cole bombing, the Kenya embassy bombings, or the attacks of September 11.
In a written decision on December 17, 2007, Captain Allred made a procedural ruling in favor of the defense, finding that Hamdan was entitled to an Article 5 hearing and that the CSRT's "enemy combatant" determination was no substitute for that hearing. On December 19, however, Captain Allred ruled against the defense on the substantive issue, finding that Hamdan was not a lawful combatant and therefore not entitled to POW status. Captain Allred further found that the government had carried its burden of proving that Hamdan is an "unlawful enemy combatant." On that basis, he denied the defense motion to dismiss for lack of jurisdiction and held that the military commission proceedings can continue.
Hearings in his case resumed on February 7, 2008, when Hamdan's defense counsel moved to dismiss both charges of conspiracy and providing material support for terrorism on ex post facto grounds, which prohibits prosecution of conduct that was not legally considered a crime at the time it was committed. Hamdan's defense also renewed their request to interview seven "high value detainees" at Guantánamo who could corroborate Hamdan's innocence. The government rejected this request, despite numerous proposals designing the interviews to adhere to national security constraints. Prior to the hearing, affidavits by a psychiatrist and one of Hamdan's lawyers described the deterioration of his mental state since being moved without justification to solitary confinement in Camps 5 and 6, which lacks natural light and air and is more restrictive than Camp 4. The defense has alleged that Hamdan is suffering from suicidal tendencies, nightmares, insomnia, and post-traumatic stress disorder, and therefore has been unable to focus on his defense. Defense has requested that Hamdan be transferred out of solitary confinement.
At additional pretrial hearings on April 28, 2008, the defense moved to dismiss
Hamdan's case based on unlawful command influence. Defense counsel called
former chief prosecutor Col. Morris Davis to testify. Col. Davis served as the
chief prosecutor until October 2007 when he resigned in protest. On the
stand, Col. Davis criticized the government's apparent willingness to rely on
tortured evidence, and he stated that the system is being run by politically-motivated
administration appointees who have repeatedly attempted to interfere with the
professional judgment of the chief prosecutor and the members of his staff. During
these same hearings, Hamdan repeatedly asserted that changes made to the military
commissions system had the effect of circumventing his legal victories and emphasizing
the system's lack of integrity. He eventually boycotted the proceedings
altogether by refusing to return the courtroom.
In a written ruling on
May 9, 2008, Judge Allred made a finding of unlawful command influence and disqualified
Legal Advisor General Hartmann from any further involvement in Hamdan's case.
On June 12, 2008, the U.S. Supreme Court ruled in the case of Boumediene v. Bush that
Guantánamo detainees have the constitutional right to habeas corpus. Habeas corpus is
the right to challenge the factual basis for detention before an impartial judge
in U.S. federal court. Subsequently, Hamdan's lawyers filed a motion in federal court seeking to delay Hamdan's military commission trial -- scheduled to begin on July 21 -- to permit them to challenge his detention and the legality of the military commission process before a federal judge. On July 17, 2008, U.S. District Judge James Robertson refused to postpone Hamdan's military commission trial. Judge Robertson ruled that federal court review is appropriate only after the military commission trial has occurred.
Meanwhile, at additional pretrial hearings during the week of July 14, 2008, Judge Allred rejected two defense motions to dismiss on constitutional grounds. On July 16, Judge Allred rejected a motion to dismiss on ex post facto grounds, finding that "conspiracy and material support for terrorism have traditionally been considered violations of the law of war.'' On July 17, Judge Allred rejected a motion to dismiss on equal protection grounds. He found that detainees are receiving sufficient privileges and that the Equal Protection Clause need not apply.
The same week, defense counsel alleged that new records turned over by the government indicate that, in 2003, Hamdan was likely subjected to "Operation Sandman," a sleep deprivation program. Hamdan's lawyers claimed that he was kept in the program for 50 days. They argued that such treatment constituted torture and that statements made by their client at this time should be discarded because they were obtained through coercion. Hamdan's testimony detailed further allegations of abuse involving sexual harassment, isolation and sleep deprivation.
Judge Allred subsequently denied Hamdan's motion to suppress statements made in Guantánamo, but the judge ordered the government to produce witnesses to testify about the circumstances under which the interrogations were conducted. Judge Allred also granted a motion to suppress statements made at a detention facility in Bagram, Afghanistan, finding that statements made by Hamdan at the prison were obtained by coercive means.
Mr. Hamdan's military commission trial began on July 21, 2008. Mr. Hamdan entered a plea of not guilty before the start of the trial, following which six military officers were selected to sit on the military commission panel that will decide Mr. Hamdan's fate.
Tuesday, July 22, saw opening statements and the testimony of two of Hamdan's interrogators. One witness, an FBI interrogator, testified that Guantánamo was the only place in the world he had failed to instruct a person he was interrogating of his right to remain silent. On Wednesday, July 23, Hamdan walked out of the courtroom as the prosecution aired a video of the Yemeni's first battlefield interrogation. He soon returned and apologized to the judge. In the video, Hamdan is hooded and seated on the bare cement floor as a masked U.S. Special Forces soldier stands behind him holding an assault rifle. The interrogator cannot be seen. Through the first week of trial, Hamdan's defense team waded through hundreds of pages of documents the government released on the eve of trial.
The prosecution temporarily rested its case on Tuesday July 29 after calling thirteen witnesses to the stand. The government is awaiting a decision from Judge Allred as to whether Robert McFadden, a Navy Criminal Investigative Service agent, will be allowed to testify as to his May 2003 interrogation of Hamdan, in which the defendant allegedly told McFadden that he had pledged a ''sacred oath of allegiance'' to Osama bin Laden. The defense has moved to have this testimony excluded on grounds that it was coerced. On July 31, Judge Allred decided to allow McFadden's testimony.
Hamdan again missed part of the trial on Wednesday, as the defense began its case. It was also reported on that day that both Bin Attash and Khalid Sheik Mohammed have refused to testify at Hamdan's trial. It is still unclear whether Mahdi al Iraq, another high-value detainee and supposed bin Laden lieutenant, would testify.
The courtroom was closed to observers on July 31 for the secret testimony of two U.S. Army Special Forces officers: psychologist Colonel Morgan Banks and military lawyer Lieutenant Colonel Guy John Taylor. Colonel Banks works for SERE, the program used to train members of the military to withstand coercive interrogation techniques. A statement by the defense said that the two witnesses were called because they were at the Bagram military base in Afghanistan when Hamdan arrived there on December 28, 2001. On Friday, August 1, the defense submitted written testimony from Khalid Sheikh Mohammed and Waleed bin Attash. The two high-value detainees had originally agreed to testify at Hamdan’s trial, but it was reported on Wednesday that they would not. KSM cited the right against self-incrimination as a reason for his refusal to appear in person. The defense team rested its case on Friday and closing arguments are set for Monday.
In closing arguments on August 4, the defense reminded jurors to "look at the information Mr. Hamdan provided to the United States when it mattered most" and suggested that Hamdan had offered to help U.S. forces in Afghanistan and that the government had squandered these opportunities. In his instructions, Judge Allred told the jurors that they should decide for themselves when the armed conflict between the United States and al Qaeda began. The jury, composed of a Navy captain and two colonels and three lieutenant colonels from the Army, Air Force and Marines, began to deliberate late on August 4.
After 6½ hours of deliberation, the jury announced its verdict on the morning of Wednesday, August 6: it found Hamdan guilty of multiple counts of providing material support for terror but cleared him of the crime of conspiracy. The jury will now decide Hamdan’s sentence.
Motion to Dismiss (12/19/2007)
Motion to Dismiss (12/17/2007)
Motions to Dismiss (12/2005-06/2007)
The Supreme Court decision
Issues Raised in the Supreme Court Case
Briefs and Materials
HRF Blogs from Hamdan’s Military Commission
HRF Critique of the Military Commissions (PDF-344KB)
Briefs Filed by Human Rights First