A federal appeals court’s decision to toss the conviction of Osama bin Laden’s former driver could have implications for future prosecutions of terrorism suspects.
The driver, Salim Ahmed Hamdan, was detained by U.S. troops in Afghanistan in November 2001 and sent to Guantanamo. In the first U.S. military war crimes trial since World War II, a jury of six military officers found Hamdan guilty in 2008 of providing material support to terrorism and sentenced him to five and a half years in prison.
But the U.S. Court of Appeals for the District of Columbia on Tuesday threw out that conviction, stating in a 3-0 decision that material support for terrorism was not proscribed as an international war crime until Congress passed the Military Commissions Act in 2006. Since Hamdan worked for bin Laden from 1996 to 2001, he cannot be punished retroactively, the court concluded.
“Indeed the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime,” wrote Judge Brett Kavanaugh.
"If the government wanted to charge Hamdan with aiding and abetting terrorism or some other war crime that was sufficiently rooted in the international law of war at the time of Hamdan’s conduct, it should have done so," Kavanaugh wrote.
Hamdan’s legal vindication is the latest challenge to the controversial war courts set up by President George W. Bush’s administration after the terrorist attacks of Sept. 11, 2001. The Yemeni driver also was at the center of a landmark 2006 Supreme Court case that struck down the war courts as unconstitutional, forcing the Bush administration to revise the system and try again.
Tuesday’s decision dealt another blow to the war courts by upending material support for terror as an offense triable by military commission.
Hamdan’s attorney, Joe McMillan, a lawyer with Seattle-based Perkins Coie, said he regards the ruling as a victory for the American justice system.
“We see it as an important statement that the U.S. must conform to the rule of law as it goes forward, even in times of perceived national emergency,” McMillan said.
Although the ruling will help clear his client’s name, it’s probably more important to the American legal tradition than to Hamdan, he said. “It’s long been deemed unjust to hold a person criminally liable for conduct that was not recognized as criminal at the time it occurred,” he said.
The decision is likely to be reviewed by the Supreme Court, even though the nation’s highest court has been reluctant to review Guantanamo detainee cases in recent years, said Eugene R. Fidell, who teaches military justice at Yale Law School.
“Above all, the decision shows how important it is to have civilian courts review decisions of the military commission and the Court of Military Commission Review,” Fidell said. “The fact that the decision overturns a commission case demonstrates that the regular federal courts can be a bulwark against government overreaching.”
The decision also is significant in its rejection of Congress’s claim that material support for terrorism was an offense under the law of nations even before the Military Commissions Act of 2006, he said.
“If and when the Supreme Court considers the case we will know more about the interplay between the legislative and judicial branches in determining what is and what is not forbidden by the law of nations,” Fidell said.
The material support of terrorism charge is the lynchpin of many cases against people accused of acting as lower-level operatives for al Qaida and other terrorist organizations. One alternative is to charge them with Aiding the Enemy. Alternatively, prosecutors could attempt to charge them with conspiracy, which is harder to prove because it requires evidence of knowledge and consent. The military jury acquitted Hamdan of conspiracy in 2008.
Hamdan was born in Khoreiba, Yemen, in 1968. Osama bin Laden hired him as a personal driver in Afghanistan in 1996, according to an affidavit Hamdan submitted about his work history.
After his capture in Afghanistan, Hamdan arrived in Guantanamo in 2002.
He was first charged in July 2004, but a federal judge in Washington halted the trial. In June 2006, the U.S. Supreme Court ruled in Hamdan v. Rumsfeld that the war courts set up the Bush administration were unconstitutional and violated the Geneva Conventions as well as military law.
The original charges against Hamdan were dropped, but the government filed new ones in May 2007 after Congress passed the Military Commission Act. Bush signed the act into law in 2006.
On Aug. 6, 2008, a military panel at Guantanamo convicted Hamdan of providing material support for terror. At trial, there was no evidence that Hamdan knew in advance of the 9/11 attacks, but that he had heard bin Laden discuss them afterward.
Hamdan was given credit for time served and transferred to Yemen to complete his sentence. He was released in January 2009. A father of four, he now works as a taxi driver.
Hamdan continued to battle his U.S. war crimes conviction, which was upheld by the newly created Court of Military Commission Review last year.
“He asked us to pursue the appeal even though he was out of confinement because the rule and the principle applies to so many others similarly situated as he was,” said Harry Schneider, one of his attorneys.
Contacted in Yemen on Tuesday, Hamdan declined to comment, citing legal advice.
Hamdan is one of seven detainees convicted in the military commission system at Guantanamo. Five of them pleaded guilty.
The only case other than Hamdan’s that went to trial was that of Ali Hamza Ahmad Suliman al-Bahlul, an al Qaida propagandist who was accused of making a video celebrating the bombing of the USS Cole. Al-Bahlul was prosecuted but refused to mount a defense. A military jury convicted him of conspiracy, solicitation to commit murder and providing material support for terrorism in October 2008.
Al-Bahlul’s appeal is awaiting a hearing date before the D.C. circuit court that tossed Hamdan’s conviction.
The conspiracy charge could be subject to the same vulnerability as the materials charge in that it did not exist as an international war crime prior to 2006, legal experts say.
“Conspiracy will likely be the next domino that falls,” said Wells Dixon, senior attorney at the Center for Constitutional Rights in New York. “So for the Obama administration to persist with military commissions – specifically to persist with charges like conspiracy – is essentially a gamble.”
More people have died at Guantanamo than have been convicted by military commission, Dixon said.
“I think that the Hamdan decision is an omen of things to come in the commission system,” he said. “I think you will see challenges to whether other offenses are law of war offenses, including conspiracy, murder, and violation of the laws of war and so forth. . . . How that will play out in the long run is very uncertain.”