Salim Hamdan had spent two years as a prisoner at Guantánamo 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 his 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 on Guantánamo, but Swift's prediction has proved correct. Hamdan is certainly famous. Not only was this Yemeni man, a former driver for Osama bin Laden with a fourth-grade education, at the center of what is perhaps the Supreme Court's most important decision on presidential power ever, he is now the first defendant in America's first war-crimes trials since World War II. Hamdan, in his late 30s, stands accused of providing material support for terrorism and conspiracy. If convicted, he could face life in prison.
And yet, despite landing in the center of a historic legal drama, Hamdan remains largely unknown to the American public. His story is still shrouded in mystery. 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 will claim, little more than a lowly foot soldier. I've been following Hamdan's story since early 2004, when I started writing a book about his case, and I 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 this week. Like few other cases, 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, 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 small 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. What happened next 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 soon found their way to bin Laden, arriving at his camp in the caves of Tora Bora only days before Ramadan, the 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.
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 sheik when he relocated for security reasons to Tarnak Farms, a walled al-Qaeda 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. Both men describe Hamdan as deferential, eager to please. Their accounts differ, though, 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 above Khost 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, one of the last Taliban strongholds, for his young daughter and pregnant wife, and drove them toward Pakistan. What happened next forms a central 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 planned 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 who 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.
In May 2002, Hamdan was flown to Guantánamo Bay, where he became detainee No. 149. Soon after, he met Soufan, the FBI's foremost expert on al-Qaeda, who interrogated Hamdan repeatedly until December 2003, when 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 necessarily an obvious choice for this historic role. He wasn't a high-ranking officer of al-Qaeda, nor was he known to have participated in any specific terrorist operations against the U.S. But from the prosecutor'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 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 have opened 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 between 1996 and 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 in 2004, Swift, Hamdan's military defense lawyer, successfully urged his client to reject the government's tentative offer 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. His lawyers' perseverance meant little to Hamdan. Officials at Guantánamo have characterized Hamdan 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 has blamed Swift for failing to improve his life on Guantánamo and has often refused to see him and even fired him once. Hamdan has also gone on and off hunger strikes, one of which ended with his being force-fed liquid nutrients in a restraining chair.
In the spring of 2006, Hamdan's lawsuit, Hamdan v. Rumsfeld, reached the Supreme Court. The justices handed Hamdan a sweeping victory, with the majority finding that the President's military tribunals were unlawful. But Hamdan's odyssey didn't end there. Rather than offer Hamdan a reduced sentence, 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 recharged under the Military Commissions Act and moved into a new maximum-security facility. There he was permitted only an hour or so of indirect contact with other detainees during his daily recreation period. (He had to exercise alone, but his chain-linked recreation pen adjoined several others.)
By his lawyers' accounts, Hamdan's six years at Gitmo have left him a shell of a man. He has deteriorated mentally to the point where he can no longer meaningfully assist in his own criminal defense. He is suicidal, hears voices inside his head and talks to himself. And yet his trial, which is taking place in a small courtroom at Guantánamo Bay, will still influence the future of the tribunal system. Under the rules of the tribunal, Hamdan faces a jury of military officers who will decide his innocence or guilt. Whether their decision is perceived as fair will go a long way toward determining if the military tribunals that President Bush first authorized in the aftermath of the Sept. 11 attacks will survive under the next Commander in Chief. In that sense, the fame or infamy of Salim Hamdan may endure long after his trial ends.
Jonathan Mahler's book, The Challenge: Hamdan v. Rumsfeld and the Fight over Presidential Power, from which this article is adapted, will be published in early August.