Salim Hamdan: Enemy Number One
By Jonathan Mahler
Salim Hamdan had spent two years as a prisoner at Guantanamo Bay when he first met Lieut. Commander Charles Swift, his Pentagon-appointed Navy defense lawyer. At the meeting, Swift suggested the possibility of suing President Bush on Hamdan's behalf.
"This lawsuit, will it make you rich?" Hamdan asked after a long pause.
"No, but it might make me famous," Swift answered. "It might make you famous too."
"I don't want to be famous," Hamdan replied. "I just want to get out of here."
Four and a half years later, Hamdan is still at Guantanamo, but Swift's prediction has proved correct. A Yemeni man in his late 30s, Hamdan, a former driver for Osama bin Laden, was at the center of perhaps the Supreme Court's most important decision on presidential power ever. He is now the first defendant in America's first war-crimes trial since World War II. Hamdan stands accused of providing material support for terrorism and conspiracy. If convicted, he could face life in prison.
And yet despite landing in the middle of a historic legal drama, Hamdan is largely unknown to the American public. It remains unclear whether he was a dedicated lieutenant of bin Laden's--"a body man for bin Laden," as one of the government's lawyers once described him to me--or, as his defense lawyers claim, little more than a lowly foot soldier. I have been following Hamdan's story since early 2004, when I started writing a book about his case, and have spent hundreds of hours interviewing his lawyers, his family, his mentor and his interrogator. From these conversations I have been able to assemble a portrait of Hamdan's extraordinary journey from the deserts of Yemen to an al-Qaeda compound in Afghanistan to the dock of the U.S. military tribunal he entered on July 21. Like few others, his story sheds light on how the Bush Administration has prosecuted the war on terrorism since 9/11, and where it might be heading now.
Hamdan's journey began in 1996 when he first met Nasser al-Bahri outside a mosque in Sana'a, the capital city of Yemen. At the time, al-Bahri, a well-educated Saudi and veteran holy warrior, was assembling a small army of jihadis to fight alongside Tajikistan's Islamic insurgency against its Russian-backed government. Hamdan was by all accounts an easy convert. Orphaned at a young age, he found a father figure in the confident and committed al-Bahri and a purpose in jihad.
Al-Bahri ultimately managed to recruit 35 men, mostly Yemenis like Hamdan, but they were stopped in Afghanistan before they could make it to Tajikistan. The ensuing days would change Hamdan's life forever. At loose ends and casting about for a cause, one of the jihadis suggested that they go see a man named Osama bin Laden. Hamdan's group arrived at bin Laden's camp in the caves of Tora Bora only days before Ramadan, Islam's holiest time of the year. For three days they listened to bin Laden preach about the religious imperative of reversing America's presence in the Persian Gulf and of changing the approach to fighting Islam's enemies. "[Bin Laden] said we must carry out painful attacks on the United States until it becomes like an agitated bull, and when the bull comes to our region, he won't be familiar with the land, but we will," al-Bahri told me in Yemen.
Seventeen of the original 35 jihadis decided to stay. Hamdan was one of them. With only a fourth-grade education, Hamdan made himself useful as a mechanic and driver. He ultimately ended up serving bin Laden himself as a chauffeur and bodyguard, following the al-Qaeda leader when he relocated for security reasons to Tarnak Farms, a walled compound 30 minutes outside Kandahar. According to both al-Bahri and fbi interrogator Ali Soufan, Hamdan had bin Laden's trust but was not a member of his inner circle. Their accounts differ when it comes to Hamdan's level of involvement with al-Qaeda. Al-Bahri characterized him as a circumstantial participant, someone with limited options who just needed a job, while Soufan said he was undeniably part of the al-Qaeda conspiracy, pointing out that Hamdan swore a bayat, or oath of loyalty, to bin Laden.
In the days leading up to 9/11, Hamdan joined a small motorcade of al-Qaeda leaders, including bin Laden and his top lieutenant, Ayman al-Zawahiri, who drove into the mountains to watch the hijacked planes crash into the World Trade Center and the Pentagon on satellite TV. Hamdan was also at bin Laden's side--as a driver--in the weeks that followed, while the motorcade moved from one guesthouse to the next as bin Laden and al-Zawahiri readied their remaining fighters for America's imminent invasion.
In late November, with U.S. forces sweeping across Afghanistan, Hamdan returned to his home in Kandahar for his young daughter and pregnant wife and drove them toward Pakistan. What happened next is a source of dispute between Hamdan and the government. According to his defense lawyers, Hamdan figured that he would be arrested if he tried to cross the border, so he instead dropped off his family and was planning to return the car, which he had borrowed, before finding a different way into Pakistan. Soufan and government prosecutors say that Hamdan remained in Afghanistan to fight alongside al-Qaeda and the Taliban. Their account is corroborated by the fact that the Northern Alliance forces that captured Hamdan in Afghanistan hours after he left his family at the border found two surface-to-air missiles in the trunk of his car.
There is evidence, though, that some of the information Hamdan provided to his interrogators was extracted by coercion. According to Hamdan, the Northern Alliance soldiers hog-tied him with electrical wire, placed a hood over his head and turned him over to the Americans for a $5,000 bounty. At the U.S.'s Bagram air base, Hamdan was allegedly kept bound hand and foot 24 hours a day. During his early interrogations, he claimed that he was in Afghanistan working for a Muslim charity. But after another detainee identified him as bin Laden's driver, Hamdan confessed.
In May 2002, Hamdan was flown to Guantanamo Bay, where he became detainee No. 149. Eighteen months later, President Bush chose him from among thousands of detainees in U.S. custody to be the first Arab defendant in the military tribunals.
Hamdan was not an obvious choice for this historic role. He didn't appear to be a high-ranking officer of al-Qaeda, nor was he known to have participated in any specific terrorist operations. But from America's perspective, he did have certain things going for him. Because the military-tribunal system was brand-new, the government thought it made sense to try some lower-ranking operatives first, in case anything went wrong. Hamdan had also been in U.S. custody since his capture and had not been rendered to any foreign countries for interrogation, which might open the door for his defense lawyer to raise questions about his treatment. And his story certainly had narrative appeal: Hamdan had been with bin Laden from 1996 to 2001, a stretch of time that spanned not just 9/11 but al-Qaeda's 1998 attacks on two embassies in East Africa and the 2000 bombing of the U.S.S. Cole in Yemen.
But things didn't turn out as the Administration planned. In 2004, Swift, Hamdan's Pentagon-appointed lawyer, persuaded his client to reject the government's tentative offer for a guilty plea--20 years' imprisonment in exchange for full cooperation, including testifying at the military commissions of other detainees. Together with a young constitutional-law professor named Neal Katyal, Swift built a defense that delayed Hamdan's military tribunal for years as it gradually made its way through the courts. Hamdan's time at Guantanamo was turbulent. Officials characterized him as a problematic prisoner, a rabble rouser who turns every order into a negotiation and incites his fellow inmates to acts of defiance. For this reason, he has spent much of his time in conditions tantamount to solitary confinement. Hamdan blamed Swift for failing to improve his life at Guantanamo, often refusing to see him when he arrived and even firing him once. He went on and off hunger strikes, one of which ended with Hamdan being force-fed liquid nutrients in a restraining chair.
In the spring of 2006, Hamdan's lawsuit--Hamdan v. Rumsfeld--reached the Supreme Court, which gave Hamdan and his lawyers a sweeping victory. A majority of Justices found that the President's military tribunals were unlawful. In response, the Administration redoubled its efforts, pressing Congress to authorize the military tribunals, which it did by passing the Military Commissions Act during the waning days of the Republican Congress in the fall of 2006. Hamdan was re-charged under the Military Commissions Act and moved into a new maximum-security facility, permitted only an hour or so of indirect contact with other detainees during his daily recreation period.
Now, finally facing his day in court, Hamdan is a shell of a man. According to his lawyers, Hamdan can no longer meaningfully assist in his own criminal defense. He is suicidal, hears voices inside his head and talks to himself. A jury of military officers will decide Hamdan's innocence or guilt. On July 21, the presiding judge threw out statements made by Hamdan after his capture in Afghanistan, saying they were obtained under "highly coercive" circumstances. That suggests that the outcome of Hamdan's trial could influence not just how terrorism suspects are treated in the future but also whether the whole system that President Bush first authorized in the aftermath of Sept. 11 will survive under the next Commander in Chief. In that sense, the fame--or infamy--of Salim Hamdan may endure long after his trial does.
Jonathan Mahler is a contributing writer at the New York Times Magazine. His book The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power, from which this article is adapted, will be published in August