21 July 2008

Hamdan Case Facts

The Hamdan trial by military commission began today, and Hamdan entered a plea of not guilty on the charges against him of conspiracy in violation of 10 U.S.C. 950v(b)(28), and providing material support for terrorism in violation of 10 U.S.C. 950v(b)(25).

The following are the facts found to be true from a December 2007 hearing regarding whether Hamdan was an alien unlawful enemy combatant, and was therefore subject to trial by military commission (pdf). Hamdan is referred to as the accused.

1. In 1996, the accused was recruited in Yemen to go to Tajikistan for jihad. As a result of difficulty crossing the border into Tajikistan, he remained in Afghanistan. Because of his experience driving vehicles, he soon came in contact with Osama bin-Ladin, and was offered work as a driver.

2. The accused began his work driving farm vehicles on bin-Ladin's farms, and afer a probationary period, was invited to join the bin-Ladin security detail as a driver of one of the security caravan vehicles. With the passage of additional time, the accused became bin-Ladin's personal driver sometime in 1997, and continued in that capacity until the fall of 2001.

3. On occasion, the accused also served as a personal bodyguard to bin-Ladin. It was customary to rotate bodyguards as a security measure, and the accused engaged in this rotation. Bodyguards not actually protecting bin-Ladin would serve as fighters, receive training at al-Qaeda training camps, serve as emirs of al-Qaeda guesthouses, and perform other duties during their rotations away from body guarding duties.

4. During this period as bin-Ladin's personal driver and sometimes bodyguard, the accused pledged bayat, or "unquestioned allegiance" to bin-Ladin. The bayat extended to bin-Ladin's campaign to conduct jihad against Jews and crusaders, and to liberate the Arabian Peninsula from infidels, but the accused reserved the right to withdraw his bayat if bin-Ladin undertook a mission he did not agree with. The accused told investigators after his capture that there were some men in bin-Ladin's company who did not agree with everything bin-Ladin did or proposed to do.

5. The accused was aware of two of bin-Ladin's fatwas, including the 1998 fatwa issued by the International Islamic Front for Jihad against the Jews and Crusaders, and which called upon all Muslims to "kill Americans and their allies, both civilian and military . . . in any country where it is possible, to liberate Al-Aqsa Mosque and the Holy Mosque from their grip, and to expel their armies from all Islamic territory ..."

6. During the years between 1997 and 2001, the accused's duties sometimes included the delivery of weapons to Taliban and other fighters at bin-Ladin's request. On these occasions, he would drive to a weapons warehouse, present a document that contained bin-Ladin's order, and his vehicle would be loaded with the required weapons. He then delivered the weapons to fighters or elsewhere as directed by bin-Ladin. On at least one occasion, he took weapons to an al-Qaeda base in Kandahar.

7. As bin-Ladin's driver and bodyguard, the accused always carried a Russian handgun. It is not unusual for men in Afghanistan to carry weapons, and the accused had a Taliban-issued permit to carry weapons when he was apprehended. His duty in case of attack was to spirit bin-Ladin to safety, while the other vehicles in the convoy were to engage the attackers.

8. The accused received small arms and other training at al-Farouq training camp.

9. The accused became aware, after the al-Qaeda attacks on the U.S. embassies in Africa, and after the USS Cole attack, that bin-Ladin and al-Qaeda had planned and executed those attacks. No evidence was presented that the accused was aware of the attacks in advance, or that he helped plan or organize them.

10. Osama bin-Ladin told the accused that he wanted to demonstrate that he could threaten America, strike fear, and kill Americans anywhere. On hearing this declaration, the accused felt "uncontrollable enthusiasm."

11. In the days before 9/11, Osama bin-Ladin told the accused to get ready for an extended trip. After the 9/11 attacks, the accused drove bin-Ladin and his son on a ten-day jaunt around Afghanistan, visiting several cities, staying in different homes or camping in the desert, and otherwise helping bin-Ladin escape retaliation by the United States. During this period, he learned that bin-Ladin had been responsible for the attacks.


12. Between the early 1990's and the fall of 2001, there was in Afghanistan a bona fide military fighting force composed primarily of Arabs, known as the Ansars. This force engaged the Soviets during their occupation of Afghanistan. They were subject to a rigid command structure, were highly disciplined, usually wore a uniform (or uniform parts), and carried their arms openly. The Ansar uniforms usually consisted of either completely black attire or traditional military camouflage uniform parts.

13. Taliban leaders did not permit the Ansars to operate independently. As a result, the Ansars were integrated with, subject to the command of, and usually formed the elite fighting troops of, the Taliban army.

14. The Taliban had a conventional fighting force that may well be described as a traditional army. They possessed aged-but-functional battle tanks, helicopters, artillery pieces and fighter aircraft. The Ansars comprised up to 25% of the Taliban army.

15. Osama bin-Ladin contributed forces to the Ansars, and provided them with weapons, funding, propaganda and other support.

16. By 1997, al-Farouq training camp, and several other training camps, were under the symbolic control of bin-Ladin.

17. The Ansars were primarily motivated by the desire to expel the Soviets and other foreigners from Afghanistan, but also fought against the Northern Alliance. Some of the Ansar units rejected bin-Ladin's calls for war against America, and the attacks of 9/11.

18. During the U.S. invasion of Afghanistan ín the fall of 2001, the Ansars were engaged in the defense of Kandahar.

24 NOVEMBER 2001

19. On 24 November 2001, U.S. forces were operating in the vicinity of Takta Pol, a small Afghan village astride Highway 4, which ran between Kandahar and the Pakistani border. Major Hank Smith had under his command a small number of Americans and six to eight hundred Afganis he referred to as his Anti-Taliban Forces (ATF). Their mission was to capture Takta Pol from the Taliban and prevent arms and supplies from Pakistan from entering Kandahar by means of Highway 4.

20. Highway 4 was the main, and perhaps the only, road between Kandahar and the Pakistan border. It was a significant supply route for people and materials transiting between Pakistan and Kandahar.

21. During the battle for control of Takta Pol and Highway 4, U.S. and coalition forces fought all night with the Taliban forces in the area. A U.S./ATF negotiating party attempting negotiations under a flag of truce was ambushed by Taliban forces, and the U.S. and coalition troops engaged the Taliban in combat, taking casualties. The Taliban forces engaged against coalition forces at Takta Pol did not wear uniforms or any distinctive insignia.

22. After an overnight battle on 23-24 November, the Taliban vacated the town, and coalition forces entered Takta Pol the morning of 24 November 2001. They swept and secured the town, and set up a road block south of town to intercept troops, munitions or other war materials, and explosive vehicles before they entered the town. The road block was also intended to prevent munitions and war materials from being carried toward Kandahar.

23. After capturing the town of Takta Pol, and while securing the town and establishing his road blocks, Major Smith and his ATF continued to receive rocket or mortar fire from outside the town.

24. At the same time, Kandahar to the north was occupied by a large number of Taliban forces. Coalition forces, including Major Smith's forces, were preparing to participate in a major battle for control of Kandahar, which was already under way.

25. During the late morning or early afternoon of 24 November, a vehicle stopped at the road block engaged Major Smith's ATF in gunfire. Two men, apparently Egyptians, from the vehicle were killed, and an occupant later identified as Mr. Said Boujaadia was captured.

26. On hearing the gunfire, Major Smith proceeded to the road block, arriving within 3-15 minutes of the firing. By the time he arrived, the accused, driving a different vehicle, had also been stopped at the roadblock. His vehicle carried two SA-7 missiles, suitable for engaging airborne aircraft. The missiles were in their carrying tubes, and did not have the launchers or firing mechanisms with them.

27. The accused was captured while driving north towards Kandahar from the direction of the Pakistani border. The vehicle carrying Mr. Boujaadia and the two Egyption fighters was also traveling north, towards Kandahar when it was stopped.

28. The only operational aircraft then in the skies were U.S. and coalition aircraft providing close air support and other support for coalition troops on the ground.

29. Major Smith's ATF did not have any surface-to-air missiles in their inventory because the Taliban had no operational aircraft in the skies. There was no need for missiles that had no target.

30. After consulting with higher headquarters, Major Smith's forces photographed the two missiles on the tailgate of one of their vehicles, and destroyed the missiles to prevent them or their explosives from being used against Coalition forces.

31. Major Smith took control of the accused from the Afghan forces who, he feared, would kill the accused if he remained in their control. The accused was fed, protected and otherwise cared for while he was in U.S. custody. A Medic checked on him several times a day, and Major Smith visited him at least once a day until he was evacuated by helicopter a few days after his capture.

32. At the time of his capture, the accused was wearing traditional Afghan civilian clothes, and nothing suggestive of a uniform or distinctive emblem.
Keep that all in mind as this goes forward. Hamdan began his association with bin Laden because he was unable to cross into Tajikistan where he intended to engage in jihad, he pledged an oath of allegiance to bin Laden, he received training at the al-Farouq training camp, he admits that he felt "uncontrollable enthusiasm" when he was told of bin Laden's goal to threaten and kill Americans anywhere, he helped bin Laden to escape retaliation immediately following the September 11th attacks, and he was captured in civilian clothes on 24 November 2001 near Takta Pol while transporting surface-to-air missiles. Salim Ahmed Hamdan is not an innocent bystander, but rather an entrenched member of a terrorist organization.

Also keep in mind that, were it not for Major Smith, Hamdan may not be alive today. Major Smith made sure that Hamdan was placed in U.S. custody and seen several times daily by medical personnel to ensure his safety and well-being; all of this taking place in Afghanistan just over ten weeks after the September 11th attacks.

I am concerned that the media coverage will try to twist perception the other way, framing the U.S. military as the bad guys and Hamdan as just some poor Muslim who got wrapped-up in something he didn't understand. Be sure to pass on the truth of this case to any who would present a version that is contrary to the facts.


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