Salim Hamdan: Enemy Number One

(2 of 2)

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 Guantánamo 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 Guantánamo, 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