January 9, 2006


The Bush Administration vs. Salim Hamdan (JONATHAN MAHLER, 1/09/06, NY Times)

Al-Bahri, Hamdan and the rest of the group made their way back through Afghanistan to bin Laden's home in Farm Hada, a village outside Jalalabad, not far from the Khyber Pass. They arrived in late 1996 shortly before Ramadan, the holiest time of year. For three days, bin Laden preached to his prospective recruits about the religious imperative of reversing America's corrosive presence in the gulf. Seventeen of the original 35 jihadis decided to stay; Hamdan and al-Bahri were among them.

For the next several years, both men worked for bin Laden, first in Farm Hada, then, when he relocated for security reasons in 1997, to a better-fortified compound in the desert outside Kandahar. In 1999, al-Bahri and Hamdan's lives became further entwined. At bin Laden's urging and with his financial help, they married Yemeni sisters in Sana and returned to Afghanistan with their new wives.

By Sept. 11, 2001, however, al-Bahri and Hamdan's paths had diverged. Al-Bahri was in prison in Yemen for his suspected links to Al Qaeda's bombing of an American Naval destroyer, the U.S.S. Cole, in 2000. Hamdan was still with bin Laden, though not for long. In late November 2001, with America's military campaign in Afghanistan well under way, he was picked up near the border of Pakistan by a group of Afghan warlords. They hogtied him with electrical wire and within a matter of days turned him over to the Americans for a $5,000 bounty. The interrogations started, and Hamdan was soon identified as Saqr al-Jedawi, his alias during his years with bin Laden. He spent the next six months in U.S. prison camps in Bagram and Kandahar, before being flown to Guantánamo Bay in May 2002.

Today, Salim Hamdan lives in a 6-by-9-foot cell in Guantánamo, awaiting trial by a special military tribunal established by presidential order in the aftermath of 9/11. If everything goes according to the government's plans, the Bush administration will prosecute Hamdan for violating the laws of war by conspiring to commit acts of terrorism against the United States. The government has revealed little about its case against Hamdan - my portrait is drawn principally from his lawyers, family members and al-Bahri - but it has charged him with serious offenses, including transporting weapons and serving as a bodyguard to bin Laden. If convicted on all charges, Hamdan could receive a life sentence.

Hamdan's attorneys, a government-appointed Navy lawyer and a professor at Georgetown University Law Center, don't deny that their client worked directly for bin Laden, but they play down his importance to Al Qaeda, portraying him as an employee, an uneducated and far-from-devout driver and mechanic who was grateful for a paycheck but generally ignorant of the terrorist enterprise for which he worked. Moreover, they say that the tribunals, known officially as military commissions, are illegal and have sued the American government to block them from going forward.

"Hi, we're from the Left and we're here to liberate Osama bin Laden's driver." That'll sell with the American people.

Posted by Orrin Judd at January 9, 2006 8:41 AM

Bush Derangement Syndrome in its final stages will likely reach the point where the left denies the World Trade Center ever existed.

Posted by: John at January 9, 2006 9:27 AM

I didn't know nothing! And pigs fly.

Posted by: Genecis at January 9, 2006 10:51 AM

1) Hamdan is in a heap of trouble. That "I was a small potato" arguement won't help him any more than it would have helped Quirin.

There is an interesting little fact left over from the Nazi commando cases. The enemy commandos, both in Long Island and in Florida, made their initial insertion wearing at least some part of their uniform. Presumably, this was so as not to forfeit lawful belligerent status in case they were captured while

The consistent C.J. disregard of the Law of Land Warfare--fighting out of uniform, hiding in mosques, bombing civilians, that sort of thing-- makes almost everything they do unlawful.

2) The USSC in Hamdi has pretty much put an imprimatur (and a Nihil Obstat) on the military commission route. This is as we would expect, as the war against terror is in progress. Courts are not going to retrain national defense in the face of the enemy.

In the contemporary LoW cases the USSC starts by not accepting the goverment's inherent powers argumnent. The MSM, deep in Bush Derangement Syndrome, reports this as a terrible defeat for the administration, which it is not, since the cases is to be decided on lesser grounds. The Court then proceeds to leave the C.J. locked up deeper than Great White Whale Dung, perhaps with a helpful suggestion about how the procedure should move along in the future.

Now if Hamden's case is the first to go the military commission route, it is perfectly reasonable for his attorneys to litigate the question. It would be reasonable likewise for future detainees to keep raising the issue so as to preserve their rights against future developments in the law, for all that their applications would be summarily denied. .

Posted by: Lou Gots at January 9, 2006 1:52 PM