By Josh White and William Branigin
Washington Post Staff Writers
Tuesday, November 25, 2008
The U.S. military has decided to transfer Osama bin Laden's former driver from custody at Guantanamo Bay to his home in Yemen, ending the seven-year saga of a man the Bush administration considered a dangerous terrorist but whom a military jury found to be a low-level aide.
Salim Ahmed Hamdan is expected to arrive within 48 hours in Yemen's capital, Sanaa, where he will serve out the rest of his military commission sentence, which is set to expire Dec. 27, two government officials said. The Pentagon's decision to send Hamdan home narrowly avoids what could have been a sticky diplomatic situation, as Bush administration officials had long contended they could hold Hamdan indefinitely.
It also prevents President-elect Barack Obama from having to decide Hamdan's fate early in his term. Obama has said he wants to close the U.S. military prison in Cuba.
Hamdan's attorneys were poised to fight the assertion that their client could be held indefinitely, a case that probably would have brought Hamdan back to the Supreme Court to challenge his detention. Instead, he will serve out the remaining month of his sentence in a Yemeni prison before being released to his wife and two young children, one of whom has never met him. Hamdan is about 40.
"Legally, we absolutely have a right to hold enemy combatants, but politically is he the guy we want to fight all the way to the Supreme Court about?" said a defense official familiar with the release negotiations. "I think we came to the conclusion that, no, he wasn't. This is a win for everyone."
A senior diplomatic official who spoke on the condition of anonymity because Hamdan had not yet arrived in Yemen said last night that the conditions of Hamdan's release are that Yemen will hold him until Dec. 27 and will then let him go and continue to mitigate any threat he might pose to the United States and its allies, a standard part of U.S. agreements with countries calling for the release of Guantanamo Bay detainees.
Military prosecutors and Hamdan's attorneys said yesterday that they could not confirm his impending release. It is standard Defense Department policy not to discuss detainee transfers until they are completed because of operational security, said Cmdr. J.D. Gordon, a Pentagon spokesman.
"Hearing that [Hamdan] may be returned in the near future doesn't surprise me," said Michael Berrigan, deputy chief defense counsel at the Pentagon's Office of Military Commissions. "That's the wise thing to do. But I can't confirm it."
Charles Swift, one of Hamdan's attorneys, said that if U.S. officials do send Hamdan home before his sentence expires, "they're absolutely doing the right thing."
"Certainly the fair thing to do is to return him," Swift said, noting that a jury of experienced senior officers thought he deserved little extra time behind bars. "If you don't, you really come to the absolute thing of the commissions becoming a complete sham."
Hamdan's saga began in 2001 with an arrest on a battlefield in Afghanistan. He was promptly sent to Guantanamo Bay after it opened in January 2002, and his case stalled, in part because of his legal challenges to the military commissions system. Hamdan, held as a suspected terrorist and afforded few rights, won a Supreme Court case in June 2006 that threw out the Bush administration's trial system and forced Congress to rewrite the rules.
He was tried under new military commission standards in August and was found guilty of material support for terrorism. But the jury, recognizing Hamdan's minor role, surprised defense officials by coming back with a 66-month sentence that gave Hamdan credit for the 61 months he had already spent at Guantanamo Bay. Prosecutors had turned down plea deals that would have landed Hamdan a sentence of 10 years or longer, went to a jury trial, and instead received a sentence that amounted to only months behind bars.
Hamdan was the second detainee to face a military commission at Guantanamo Bay and became the second man convicted of terrorism charges at the military base. Australian David Hicks was the first, accepting guilt on terrorism charges as part of a high-level plea deal that secured his release from the prison and the ability to serve out his sentence in his homeland. Hicks has been living at home under supervised release, which is scheduled to end soon.
Col. Lawrence Morris, the Pentagon's lead prosecutor for military commissions, said that senior officials consider many factors when transferring a detainee overseas and that he is confident they have those in mind in every case.
"The critical factor is that they are held accountable for their conduct and that they are disabled for the appropriate time period from their involvement in terrorism," Morris said last night. "When our leaders evaluate whether to return them somewhere, that is foremost in their mind, and they would not return them unless they were satisfied on both those fronts."
Hamdan's release will be a preliminary test of Yemen's ability to follow through on detainee transfers and continued custody, as the United States has questioned the Yemeni government's ability to enforce such agreements. Yemen is working to set up a rehabilitation program for released terrorism suspects, similar to one in Saudi Arabia.
Yemeni officials declined to comment on Hamdan because he has not yet been transferred.
"We haven't been comfortable with Yemen's track record on Guantanamo detainees," said one U.S. defense official, referring to the 10 or so that have returned to the country. "This will be good to show us if they have the political will to work with us on the remaining population. It's a good opportunity for them."
Staff researcher Julie Tate contributed to this report.