D.C. Circuit Overturns Conviction of Osama bin Laden's Driver: "Material Support for Terrorism" Was Not a War Crime

The U.S. Court of Appeals for the District of Columbia Circuit has overtunred the conviction of former Guantanamo detainee Salim Hamdan for “material support for terrorism.”  Hamdan had been convicted in 2008 following a United States military commission trial at Guantanamo Bay.  A military jury had acquitted him of conspiracy but convicted him of providing "material support for terrorism" for his service as a driver to Osama bin Laden from 1996 to 2001.  The case is Hamdan v. United States, No. 11-1257 (D.C. Cir. Oct. 16, 2012).

In overturning the conviction, the D.C. Circuit Court of Appeals found that the charge of material support for terrorism did not exist as a war crime when Hamdan committed the alleged acts. Because authorizing punishment for something that was not a crime when committed would run afoul of the ex post facto clause to the U.S. Constitution, the court found that the Congress intended to authorize punishment for only pre-existing war crimes.

“The court rightly ruled that a war-crimes commission can’t convict someone for an act that wasn’t a war crime when it was committed,” said Kenneth Roth, executive director at Human Rights Watch. “The decision shows us yet again why it’s better to try terrorism suspects in the tried-and-true federal courts rather than in the make-it-up-as-you-go-along military commissions.”

Hamdan’s conviction had been upheld by the Court of Military Commission Review, a newly created appeals court for the military commissions.  Seven detainees have been convicted in the military commission system at Guantanamo, five by plea bargain. One detainee was prosecuted but refused to put on a defense in protest. Hamdan’s conviction was the only one obtained following a contested trial.

Click here to read a copy of Hamdan v. United States.

In the decision, the court first found that Hamdan's appeal was not moot even though he had been transferred from Guantanamo to Yemen in 2008 and had been released there.  The court found that "a defendant's direct appeal of a conviction is not mooted by the defendant's release from custody." (Slip Op. at 4).

Second, the court also found the Military Commissions Act of 2006 did not authorize "retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occured." (Slip Op. at 5)(emphasis in original).  

Third, the court found that "the international law of war did not proscribe material support for terrorism as a war crime."  (Slip Op. at 5)(emphasis in original).  The court found that international law established that at least some forms of terrorism, including the intentional targeting of civilians, were war crimes.  (Slip Op. at 22).  But the court found that "material support for terrorism," rather than terrorism itself, was not a crime under international law.  "There is no international-law proscription of material support for terrorism."  (Slip Op. at 22).  No applicable treaties made it a crime and customary international law did not make it a crime.  

Because the Military Commissions Act did not retroactively punish crimes, and because existing support for terrorism was not a pre-existing war crime, the court found that Hamdan's conviction for material support for terrorism could not stand.

Senior Circuit Judge Ginsburg wrote a concurring opinion in which he lamented that the court needed to rule on a case when the individual had long been released and that he was barred from entering the United States.   

(mew) (adapted in part from a press release from Human RIghts Watch)