Salim Hamdan

Salim Ahmed Salim Hamdan
Born	(1968-02-25) February 25, 1968 Wadi Hadhramaut, Yemen
Occupation(s)	Former driver for Osama bin Laden; detainee
Known for	Detention at Guantanamo Bay; Hamdan v. Rumsfeld Supreme Court case

Salim Ahmed Salim Hamdan (; born February 25, 1968) is a Yemeni citizen who was apprehended during the invasion of Afghanistan and detained at Guantanamo Bay from 2002 until November 2008. He acknowledged serving as Osama bin Laden's personal chauffeur, citing financial hardship as his reason.

Initially, he faced charges from a military tribunal for "conspiracy and providing material support for terrorism," which brought into question the validity of military commissions. In the landmark case Hamdan v. Rumsfeld (2006), the United States Supreme Court declared the Department of Defense’s military commissions unconstitutional. Despite the ruling, Hamdan continued to be held as an enemy combatant.

After the enactment of the Military Commissions Act of 2006, Hamdan was retried beginning July 21, 2008, marking the first trial under the updated system. He was found guilty of "providing material support" to al Qaeda, while conspiracy charges were dismissed. Sentenced to five and a half years, he was credited for time already served. The Pentagon suggested he might continue to be designated as an "enemy combatant" and remain in custody even after completing his sentence.

In November 2008, Hamdan was transferred back to Yemen to serve the last month of his term and was released on January 8, 2009, enabling him to reunite with relatives in Sanaʽa. On October 16, 2012, the US Court of Appeals in Washington, D.C. overturned his conviction, resulting in a complete acquittal.

Hamdan and his brother-in-law Nasser al-Bahri were subjects of Laura Poitras’s documentary The Oath (2010), which explores their involvement with al-Qaeda and the difficulties they faced thereafter.

Early life

Born in 1968 in Wadi Hadhramaut, Yemen, Salim Hamdan was raised within the Muslim faith. He entered into marriage and fathered daughters. Seeking employment, Hamdan traveled to Afghanistan, where he was recruited into al-Qaeda by fellow Yemeni Nasser al-Bahri. Initially, he participated in an agricultural initiative launched by Osama bin Laden and subsequently took on the role of bin Laden's driver, driven by financial necessity.

Capture in Afghanistan

On November 24, 2001, Hamdan was apprehended in southern Afghanistan. Records indicate that he was detained while traveling in a vehicle alongside four individuals suspected of al-Qaeda affiliation, including Osama bin Laden’s son-in-law; during the encounter, three suspects were killed in an exchange of gunfire. Following their capture, Afghan forces transferred Hamdan and one surviving associate to American custody. He was first detained in Afghanistan before being moved to the newly established Guantanamo Bay detention camp in 2002.

Trial timeline

The Department of Defense formally charged Hamdan with conspiracy on July 14, 2004, initiating proceedings under the President’s Executive Order dated November 13, 2001, for trial by military commission. To mitigate potential bias, General John D. Altenburg dismissed three out of six original Military Commission members on October 22, 2004.

Subsequently, on November 8, 2004, the United States District Court for the District of Columbia suspended Hamdan’s military commission proceedings. The court cited the absence of a "competent tribunal" to assess his status as a POW under the Geneva Conventions, along with breaches of the Uniform Code of Military Justice (UCMJ). The Bush administration challenged this decision through appeal.

During this period, from July 2004 to March 2005, the Department of Defense conducted Combatant Status Review Tribunals to determine detainees’ classification as enemy combatants.

On July 17, 2005, a panel comprising three judges from the United States Court of Appeals for the District of Columbia Circuit reversed the lower court’s ruling. The appellate court upheld the government’s position that members of al-Qaeda are not protected under the Geneva Convention. Notably, John G. Roberts—who would later become Chief Justice of the Supreme Court—joined the majority opinion.

Following this ruling, military commissions recommenced at Guantanamo Bay.

Hamdan’s legal team appealed once more; on November 7, 2005, the Supreme Court agreed to review the decision from the DC Circuit. John G. Roberts recused himself due to prior involvement with the case. On June 29, 2006, in Hamdan v. Rumsfeld, the Supreme Court declared that these military commissions were unlawful as they contravened both the UCMJ and Geneva Convention provisions incorporated into U.S. law.

Supreme Court opinion

The Supreme Court delivered its judgment in Hamdan v. Rumsfeld on June 29, 2006. It confirmed its authority to enforce the 1949 Geneva Conventions and to oversee cases involving alleged enemy combatants tried before military commissions. In a 5-3 plurality decision, the Court found that the military commissions lacked proper jurisdiction because their framework violated provisions of both the Uniform Code of Military Justice and Common Article 3 of the Third Geneva Convention.

In reaction to this ruling and at the behest of the Bush administration, Congress enacted the Military Commissions Act of 2006, which authorized the establishment and operation of military commissions. President George W. Bush signed this legislation into law on October 17, 2006. Subsequently, Hamdan’s trial was slated for June 2007.

Prosecution under the Military Commissions Act

After spending five years at Guantanamo, Hamdan faced charges on May 10, 2007, under the newly enacted legislation, accused of conspiracy and "supporting terrorism." Lieutenant Commander Charles Swift, Hamdan's defense attorney, contended that conspiracy charges were unsuitable given Hamdan's position. Conversely, Department of Defense spokesperson Commander Jeffrey Gordon rejected assertions that Hamdan held a minor role.

Dismissal of charges

On June 4, 2007, military judges dismissed all allegations against Hamdan and fellow detainee Omar Khadr from Canada. Army Judge Colonel Peter Brownback alongside Navy Judge Captain Keith J. Allred determined that although the Military Commissions Act of 2006 permitted trials for "unlawful enemy combatants," the commissions did not have authority over those labeled merely as "enemy combatants."

This verdict mandated a reassessment of all detainees to verify their status as "unlawful enemy combatants" before proceeding under the MCA. The decision affected all 380 individuals held at Guantanamo and marked a considerable obstacle to the Bush administration’s prosecution strategy.

In response, the U.S. government faced three potential paths: abandon and restart legal actions; conduct separate hearings to reclassify detainees as "unlawful enemy combatants"; or file an appeal—a challenge complicated by the absence of a designated appellate court for military commission rulings (later remedied by establishing the Court of Military Commission Review).

The Washington Post observed that this ruling enhanced the likelihood of Senate measures restoring detainees' access to U.S. courts and suggested that future prosecutions might be conducted in civilian courts or through courts martial.

Designation as an "illegal enemy combatant"

On December 21, 2007, Judge Allred concluded that Hamdan qualified as an "illegal enemy combatant," thereby permitting trial by military commission. Lieutenant Brian Mizer, part of Hamdan’s defense team, argued that their evidence indicated if the weapons found in Hamdan’s vehicle were present, he was simply transporting conventional arms toward a traditional battlefield in support of an acknowledged enemy combatant engaged in an international armed conflict.

February 8, 2008 hearing

A hearing took place on February 8, 2008.

Mental health concerns

Hamdan’s attorneys petitioned for his removal from solitary confinement, citing its harmful impact on his psychological well-being and capacity to participate in his defense. Lawyer Andrea Prasow stated:

They reported that during the previous month, Hamdan had only been allowed two exercise sessions. Formerly housed in Camp 4, which accommodates compliant detainees with communal dormitories and exercise opportunities, he was transferred in December 2006 to Camp 5, where inmates spend most of their time isolated in windowless cells.

Psychiatrist Emily Keram identified symptoms consistent with post-traumatic stress disorder and noted a risk for "suicidal thoughts and behavior." Hamdan’s legal team contrasted his treatment unfavorably with that of Canadian detainee Omar Khadr, who remained in Camp Four with privileges including family telephone calls. They emphasized that Hamdan displayed suicidal behavior, auditory hallucinations, flashbacks, and self-directed speech, describing Guantánamo’s conditions as mentally debilitating.

Unavailable records

The Defense team representing Hamdan expressed concerns that certain detainee files had been withheld by the Prosecution. Lieutenant Commander Timothy Stone informed Allred that all records had been delivered except those from 2002, which remained unlocated despite continued efforts. Chief Prosecutor Colonel Lawrence Morris characterized the absent documents as containing "mostly harmless material."

Authorization to meet high-value detainees

In February 2008, Hamdan's attorneys sought permission to interview Khalid Sheikh Mohammed along with thirteen other high value detainees to obtain evidence for the defense, a request opposed by Morris. Allred deferred making a decision on this matter.

Detainee boycott

On April 29, after seven years of participation, Hamdan joined the detainee boycott of Guantanamo Military Commissions, declaring:

America proclaims freedom and justice to the world. I do not witness that here ... Nearly 100 detainees are present. We are denied any rights. No humanity is shown ... Provide me a fair tribunal ... Judge me under just laws.

Trial in July

Hamdan’s trial began on July 21, 2008.

Selection of jury

Thirteen individuals underwent voir dire for the military commission jury. On July 21, 2008, six jurors and one alternate were appointed. Reuters reported that their identities were kept confidential. A candidate with experience related to the , which was targeted by terrorists, was excluded; he had formerly served as a police officer.

Plea of not guilty

Hamdan entered a plea of not guilty on all charges brought against him.

Exclusion of coerced testimony

Presiding Officer Keith Allred ruled that any confessions obtained while Hamdan was detained at the Bagram Theater Internment Facility and a Panjshir detention center—where enhanced interrogation techniques widely regarded as torture were applied—could not be admitted as evidence.

Prosecution witnesses claimed Hamdan was involved in planning the embassy bombings and the USS Cole attack in 2002, despite evidence showing he neither orchestrated nor had prior knowledge of these incidents.

On July 24, 2008, NCIS agent Michael St. Ours testified that Abdellah Tabarak headed Osama bin Laden’s security team. Defense attorneys disclosed that Tabarak had been released without any charges—a revelation legal analyst Andrew Cohen described as a "major embarrassment" for the government.

The prosecution postponed delivering detainee interrogation records until July 28, 2008. One document corroborated Hamdan’s allegation of sexual humiliation inflicted by female interrogators. Defense counsel Harry H. Schneider Jr. affirmed this account's veracity. Prosecutor John Murphy contested classifying these actions as coercion, arguing it unjustly maligns agents engaged with detainees.

Testimony of Robert McFadden

The defense moved to exclude testimony from Robert McFadden, a former FBI agent who conducted interrogations of Hamdan. Since most of Hamdan’s initial Guantanamo interrogations had already been ruled inadmissible due to coercive methods, on July 29, 2008, the judge penalized the prosecution for withholding documents by disallowing McFadden’s May 2003 testimony. McFadden was expected to testify that Hamdan admitted to swearing Bay'ah, an oath of allegiance, to Osama bin Laden. Nonetheless, Judge Allred eventually permitted McFadden’s testimony.

Conviction and acquittal

The jury found Salim Ahmed Hamdan not guilty of conspiracy but convicted him on the charge of providing material support for terrorism. While awaiting the decision, Hamdan made his initial family phone call in Yemen, marking the 107th such call made by a detainee.

Sentencing

On August 7, 2008, a military jury sentenced Hamdan to five and a half years (66 months). Prosecutors had pushed for a sentence ranging from 30 years to life imprisonment, whereas the defense argued for less than 45 months. With 61 months already credited as time served, Hamdan faced only an additional five months. A Pentagon spokesperson indicated that after sentencing, Hamdan might be reclassified as an "enemy combatant," which could result in indefinite detention.

Presiding Officer Allred characterized Hamdan as a "minor participant," noting that the sentence qualified him for ongoing detention reviews by an Administrative Review Board. Allred expressed optimism that Hamdan could eventually reunite with his family and fulfill his roles as a husband and provider.

Reactions

Former Chief Prosecutor Air Force Colonel Morris Davis remarked that the verdict reflected the jury’s evaluation of Hamdan’s involvement and highlighted the military commissions’ diligence.

The Associated Press reported that former Deputy Assistant Secretary of Defense for Detainee Affairs Charles "Cully" Stimson sent an email urging the government to avoid pursuing weak conspiracy charges.

American Civil Liberties Union spokesman Ben Wizner commented that if the government respects the jury’s message, it will refrain from using flawed military tribunals to prosecute actions outside the laws of war.

On August 10, 2008, Josh White wrote in The Washington Post that a plea agreement from 2006 had been considered for Hamdan, with Stimson supporting a ten-year sentence; however, senior officials in the Bush administration rejected this plan.

On August 11, 2008, Jess Bravin of The Wall Street Journal quoted a juror who stated that the verdict was based solely on the evidence presented and was not intended as criticism of the Bush administration.

Request for new sentencing hearing

On September 26, 2008, Army Colonel Lawrence Morris, Chief Prosecutor at Guantanamo, petitioned for a new sentencing hearing for Hamdan. He sought to revoke credit for time already served and impose an additional six-year term. The Department of Defense asserted it retained authority to detain enemy combatants beyond their Military Commission sentences.

Hamdan’s military counsel, Lt. Cmdr. Brian Mizer, criticized this stance by stating:

The government, having stacked the deck, is now complaining about the hand it was dealt.

On October 31, 2008, Judge Allred denied the motion to revisit Hamdan’s sentence.

Return to Yemen

In November 2008, Hamdan was repatriated to Yemen by the United States. Yemeni authorities agreed to detain him until he completed the remaining month of his sentence. His family was not allowed to greet him at Sanaa International Airport.

Chuck Schmitz, one of Hamdan’s translators at Guantanamo, was approached by a publisher about co-authoring a book recounting Hamdan’s experiences.

Appeal and Rejection of Charges

Following his release, Hamdan persisted in challenging his conviction. The Court of Military Commission Review affirmed the verdict in 2011, which was subsequently taken to the United States Court of Appeals for the District of Columbia Circuit. On October 17, 2012, this appellate court overturned Hamdan's conviction, determining that the offenses cited under the Military Commissions Act of 2006 did not constitute war crimes under international law at the time they were committed. Consequently, his prosecution was deemed ex post facto and unconstitutional. The ruling was delivered by a three-judge panel, with Judge Brett Kavanaugh authoring the opinion, joined by Judges David Sentelle and Douglas Ginsburg.

See also

• The Oath (2010 film)

External links

• Salim Hamdan’s detainee profile at Guantanamo via Wikileaks
• Military court to reconsider appeal of bin Laden’s chauffeur
• Lawyers challenge Guantánamo trial verdicts Andy Worthington, February 1, 2010
• Testimony from Dr. Emily A. Keram regarding Salim Ahmed Hamdan
• Charge Sheets (.pdf), Department of Defense
• Transcripts, Exhibits, and Related Documents from Commissions, Department of Defense
• Scheduling Information for Commissions, Department of Defense
• In-depth January 8, 2006 New York Times coverage of Hamdan’s case
• Slow Progress in Justice System for Detainees Washington Post, May 6, 2008
• DC District Court decision on War Crimes Trial Motion (July 2008)
• Hamdan receives sentence of five and a half years msnbc, August 7, 2008
• Analytical review of Salim Hamdan’s Guantánamo trial and controversial verdict Andy Worthington, August 6, 2008