Salim Hamdan

By Nina Shapiro

After nine years, the case against Osama Bin Laden’s onetime chauffeur, Salim Hamdan, is finally over. Hamdan’s defense team, housed within the veteran Seattle firm Perkins Coie, heard on Friday that the federal government will not appeal a ruling by the D.C. Circuit Court of Appeals that vacated the Yemeni national’s conviction for providing material support for terrorism.

That leaves the D.C. Circuit ruling standing as a precedent that could affect a range of cases tried by U.S. military commissions, including those now pending against accused 9/11 conspirators.

*See Also: Driving Bin Laden: Salim Hamdan

As Rick Anderson chronicled in a fascinating cover story, Hamdan was captured in November 2001 as he attempted to pass an Afghan militia guard post. Bin Laden, who had fled that part of Afghanistan by then, wasn’t in the car. His escape may have frustrated the U.S. government, but the feds were determined to nail the man they had. They took Hamdan to Guantamo Bay. Anderson writes:

The government would draw a dark picture of Hamdan, noting his alias was “The Hawk,” and said bin Laden had held a wedding party for him. He had driven the terrorist chief to news conferences and speeches, and sometimes carried a machine gun–though apparently he never fired it. Still, there was little persuasive evidence that his duties amounted to much more than driving bin Laden and helping run the car pool. As The New York Times put it, “Mr. Hamdan’s offenses are not enumerated anywhere, but appear to include checking the oil and the tire pressure.

Hamdan’s case followed many twists and turns, through a variety of courts and lawyers. In the end, though, the government was unable to prove its darkest allegations. A military jury acquitted Hamdan of conspiracy in 2008, but found him guilty of a lesser material-support charge. Then, last October, the D.C. Circuit ruled that even that conviction couldn’t stand.

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By John Bellinger

I was out of the country last week and missed the opportunity to weigh in promptly on the Hamdan decision.  In reading the reactions, I have noted that many human rights and civil liberties groups have insisted that the decision proves, more than ten years later, that Guantanamo detainees should have been tried in federal court rather than military commissions.    Bobby responded with a typically thoughtful post questioning whether Hamdan could actually have been tried in federal court for material support for terrorism for his acts prior to November 2001 because the federal material support statutes (18 USC 2339A and 2339B) were not amended to apply extraterritorially until November 2001 and 2004, respectively.  I simply want to expand on Bobby’s comment by noting that this was a significant  obstacle for prosecution in federal court of the majority of Guantanamo detainees.

During the Bush Administration, human rights groups and many foreign (especially European) governments insisted that ALL Guantanamo detainees SHOULD be prosecuted in federal court, or released.  But this argument, while based on an understandable and strongly supportable policy preference, was premised on the assumption that all detainees COULD be tried in federal court.  In fact, it was always my understanding from the Department of Justice that, as with Hamdan, many if not most detainees could NOT be prosecuted in federal courts for many of their actions prior to November 2001 (such as training in al Qaida training camps), because 2339A and 2339B did not apply to extraterritorial acts of non-nationals.  As a result, it is misleading for human rights and civil liberties groups (and the New York Times editorial board) to insist that all Guantanamo detainees should be tried in federal court.  In fact, many of them could not have been tried in federal courts and would have to have been released — not because they were “innocent” of terrorist acts (as their defense counsel have vigorously asserted), but because they had not committed federal crimes.  It is my understanding that this is a major reason why the Obama Administration, which had been expected to jettison military commissions and to rely only on federal courts, reluctantly decided in early 2009 to retain them.

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By Shaun Tandon (AFP)

WASHINGTON — A US court Tuesday threw out the conviction of Osama bin Laden’s former driver who was once jailed at Guantanamo Bay, rejecting government charges that material support to terrorism is a war crime.

While Salim Hamdan has already been freed, the Yemeni’s appeal could have broader ramifications as everyone convicted by the military commission at the US base in Cuba has been accused of material support to terrorism.

The US Court of Appeals in Washington said that a law that listed material support for terrorism as a war crime — approved in 2006 in response to Hamdan’s case — could not apply to him retroactively.

US prosecutors instead had to rely on international law, which defines some forms of terrorism — such as the intentional targeting of civilians — as war crimes, the court said.

“But the issue here is whether ‘material support for terrorism’ is an international-law war crime. The answer is no,” Judge Brett Kavanaugh wrote for the court in an opinion with which two other judges largely agreed.

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SAN JUAN, Puerto Rico — A military court has upheld the conviction of the first Guantanamo Bay prisoner to be tried for war crimes at the U.S. base in Cuba.

The U.S. Court of Military Commission Review refused to overturn the August 2008 conviction of Salim Hamdan. The court rejected a claim that the charge of providing material support to terrorism is not a war crime that can be prosecuted by a military tribunal.

Hamdan was charged with the offense because he had been a driver for Osama bin Laden. Hamdan was sentenced to 5 1/2 years in prison but has been released and returned to his native Yemen.

The Pentagon released the ruling Friday.

The military is preparing to resume trials at Guantanamo.

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This makes total sense to me.  He was a taxi driver before – he was illegally detained in Guantanam – he was freed, why not go back to work?

SANAA, Yemen, (UPI) — Osama bin Laden‘s former chauffeur says he is back to driving for a living following his return to his native Yemen.

Salim Ahmed Hamdan told the Toronto Star business is difficult given the lack of tourism in the capital of Sanaa and he sometimes doesn’t make enough to cover the price he has to pay for use of the car.

But Hamdan says his life is a lot better than it was for seven years when he was locked up at the U.S. detention center at Guantanamo Bay.

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by Andy Worthington

In 2007, after four rounds of administrative reviews at Guantánamo, Hedi Hammamy, a Tunisian prisoner, born in 1969, was cleared for release, having satisfied the Pentagon that he no longer represented a threat to the United States or its allies and no longer possessed any ongoing intelligence value. He was not released, however, because, although the U.S. government had secured a “diplomatic assurance” from the government of the Tunisian dictator Zine El Abidine Ben Ali, which purported to guarantee that returned prisoners would be treated humanely, two prisoners returned in June 2007 were apparently mistreated in Tunisian custody and were then imprisoned after what were regarded by human rights observers as show trials.

This prompted a district court judge to prevent the return of a third Tunisian in November 2007, with the result that this man, Lotfi bin Ali, and several other cleared Tunisians — including Hedi Hammamy — have languished in Guantánamo ever since, as the State Department has tried in vain to find a third country prepared to accept them.

 

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Bruce Fein

Last Friday, President Barack Obama’s views in a habeas corpus filing submitted to the United States District Court for the District of Columbia made it unanimous across party lines.

The United States is engaged in a perpetual war with international terrorism. Although the number of American deaths it has caused on and after Sept. 11, 2001, approximates 2 percent of American murder victims since that date, both parties agree the United States is not at war with murder and that the president may not detain suspected murderers who might be second editions of Timothy McVeigh for life without accusation or trial. Why the greater threat of murder occasions lesser invasions of liberty than the lesser danger of international terrorism has never been explained.

 

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An attorney for former U.S. terrorism detainee Salim Ahmad Hamdan January 11 announced that Hamdan had been released by the Yemeni government on January 8. Hamdan, who had worked for Al Qaeda international terrorist network head Osama bin Laden, had been the first person convicted of war crimes under the system of military trials set up at the U.S. military prison at Guantanamo Bay, Cuba, by the 2006 Military Commissions Act. [See 2008 U.S. Terrorism Detainees: Hamdan to Serve Out Sentence in Yemen]

Hamdan had been sentenced in August 2008 to five years and six months’ imprisonment but had received credit for five years and one month already served. He had been flown from Guantanamo Bay to his home country of Yemen in November to finish serving his sentence.

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By Andy Worthington

Those of us who prefer justice to arbitrary and unaccountable detention without charge or trial were delighted when, last week, Barack Obama fulfilled a long-stated promise and issued a presidential order stating that Guantánamo will be closed “as soon as practicable, and no later than one year from the date of this order,” and establishing an immediate review of the cases of the remaining 242 prisoners to work out whether they can be released.

A year is a long time, of course, if you’re unfortunate enough to have been imprisoned in Guantánamo for up to seven years with no way of asking why you’re being held, but some of us were prepared to give the new President the benefit of the doubt, and to consider that perhaps he didn’t want to make a rash promise that he might find himself unable to fulfill, such as pledging to close the wretched place in a matter of months.

Recent events, however, have demonstrated that, although President Obama has set in motion a policy that addresses the prisoners’ future, their long desire to have an opportunity to question the basis of their detention is currently being addressed not in the White House but in the District Courts, following an epic, four-year struggle between the Supreme Court and Congress to grant them their wish. Since the justices of the Supreme Court decisively ended this struggle last June, by ruling that Congress had acted unconstitutionally when it stripped the prisoners of the habeas corpus rights that the Supreme Court had granted them in June 2004, a raft of previously marooned habeas cases has been making its way through the District Courts.

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By: Michael Gsovski

More than four years ago, Georgetown Law School professor Neal Katyal was looking to represent a detainee at Guantanamo Bay who had not “pulled the trigger” on an American. In front of a crowd of about 75 at Ryan Family Auditorium in Technological Institute on Thursday night, he told the audience how his eventual client, Salim Ahmed Hamdan, had been described to him.

“‘I’ve got a guy who drove a bad guy around,’” Katyal recalled the chief prosecutor telling him. “I asked him who it was and he said, ‘That’s the bad news: It’s Osama bin Laden.’ ”

The resulting case, Hamdan v. Rumsfeld, eventually came before the U.S. Supreme Court. The Court ruled 5-3 in 2006 that the military commissions the Bush administration established to try enemy combatants were illegal, both under the Uniform Code of Military Justice and under Article 3 of the Geneva Convention. Katyal was invited to campus as the keynote speaker of the Muslim-cultural Students Association’s Islam Awareness Week.

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