by The Jacksonville Bar Association President Courtney Grimm
Nearly seven years after Salim Hamdan had been taken into custody by the United States, he was finally being brought to trial in America’s first military commission since World War II.
Hamdan, after dropping off his wife and daughter at the Pakistan border, had been apprehended in November 2001 at a roadblock while returning to Kandahar, Afghanistan. Two surface-to-air missiles had been found in the trunk of the car he was driving.
He was kept in isolation 24 hours a day with his hands and feet bound. He was endlessly interrogated and denied any connection to bin Laden or al-Qaida. He, however, was bin Laden’s chauffeur and the U.S. government was able to map out his driving itinerary with bin Laden after the 9/11 attacks.
In April 2002, he was transferred to Guantanamo Bay, Cuba, and a little more than a year later, he was charged with terrorism and conspiracy to commit murder or terrorism in violation of the laws of war.
Hamdan was provided military counsel, but his counsel had been instructed to negotiate a guilty plea.
Civilian help was sought and attorney Harry Schneider of Perkins Coie in Seattle agreed to join the defense team.
The team immediately went to work bringing a petition for writ of habeas corpus on Hamdan’s behalf. Claims were asserted against the president and the secretary of defense challenging their authority to try Hamdan before a military commission at Guantanamo Bay.
The challenge ended up before the U.S. Supreme Court, which ruled in Hamdan v. Rumsfeld that the president had exceeded his authority and Hamdan was entitled to, but had been denied, certain protections under the Geneva Conventions. The decision has been described as “the most important decision on presidential power and the rule of law ever.”
In response to the Supreme Court’s ruling, Congress passed the Military Commissions Act, and charges against Hamdan were re-filed.
Controversy brewed within the administration and the chief prosecutor resigned in protest, recounting an ultimatum he had received from the Pentagon: “We can’t have acquittals, we have to have convictions. If we’ve been holding these people for so long, how can we explain letting them get off?”
The 2008 presidential election was approaching and the Bush administration was pressing ahead.
Meanwhile, Hamdan, who had been held captive for more than six years, was mentally and emotionally deteriorating. He had been transferred into a maximum security facility with minimal contact among the prisoners.
He refused to talk to his lawyers and after being pressed by his assigned military counsel to cut a deal – as a guilty plea was probably his best shot at seeing his family again – he interrupted his pretrial hearing and announced his intention to boycott his own trial: “I refuse to participating in this and I refused all the lawyers that is presiding on my behalf. There is no thing as justice here.” Hamdan sent seven letters to Schneider reaffirming his desire that his lawyers not speak on his behalf.
Determined to present a defense for Hamdan, Schneider visited him prior to trial and told him that although he couldn’t make any promises, if they didn’t at least try, a life sentence was inevitable. Hamdan agreed.
As trial began, the defense team was not optimistic. Hamdan had admitted to serving as a driver for bin Laden, so the first charge was a guaranteed conviction. The second charge, however, required the government to actually demonstrate that Hamdan had actively and knowingly joined al-Qaida’s plot to engage in acts of terrorism against the United States. Schneider spoke first for the defense.
“The evidence in this case will show that this man is not a war criminal who committed war crimes against the United States of America … The evidence will be, no doubt, that what they accomplished was devastation and destruction of the kind and nature we hope and pray never to see again … And the evidence will be such that it will cause any reasonable American to be upset and perhaps to want to exact some measure of revenge and see to it that those people, those responsible are brought to justice. … But all the evidence in this case … is going to show that Salim Hamdan was never a member of that conspiracy and that he never perpetrated those acts.”
Two weeks later, after a little more than a day of deliberations, the jury returned convicting Hamdan on the charge of material support but acquitting him on the charge of conspiracy. The defense team was ecstatic. Hamdan was crushed, not understanding that he had beaten the most serious charge against him.
At the sentencing, the jury deliberated for just over an hour and sentenced him to 66 months, which meant just five and a half months factoring in time served. Hamdan and his lawyers embraced. The judge responded “I wish you Godspeed, Mr. Hamdan. I hope the day comes when you return to your wife, your daughters and your country.” Hamdan replied: “Inshallah, God willing.”
After the courtroom cleared out, Schneider sat alone reflecting on what had happened, “marveling at how the jury had done something reasonable in a place designed to be unreasonable.”
Schneider will share with us at our Law Day luncheon his personal recount of the defense of Hamdan and his realization that he wasn’t only defending his client but also the rule of law that defines America as a civilized society.