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.