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D.C. Circuit Clears Terrorism Suspect after 11-Year Ordeal

An October 16, 2012 decision by the D.C. Circuit Court of Appeals has ended the lengthy ordeal of Salim Ahmed Hamdan, who was originally captured in Afghanistan in 2001 and detained at the U.S. military prison in Guantanamo Bay, Cuba after he was accused of being an “unlawful enemy combatant.”

Hamdan was tried and convicted by a military commission for “material support for terrorism” under the Military Commissions Act of 2006 (Act), for having served as Osama bin Laden’s personal driver. He was sentenced to 66 months imprisonment then transferred to Yemen in 2008, where he was released the following year. He persisted in the appeal of his conviction, however, and finally prevailed in his legal fight against the U.S. government.

Hamdan had originally challenged his detention and trial before a military commission as an unlawful enemy combatant, and the Supreme Court, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) [PLN, Sept. 2006, p.27], agreed that the military commission rules then in place contravened statutory limits because they did not comply with certain restrictions set forth in 10 U.S.C. § 836.

Hamdan’s appeal of his conviction pertained to three separate issues: whether or not the completion of his sentence mooted his appeal; whether the Executive Branch had authority under the Act to prosecute him since his alleged conduct occurred from 1996 to 2001, before the Act was passed; and finally, whether 10 U.S.C. § 821 proscribes material support for terrorism as a war crime.

The Court of Appeals first found the case was not moot because it was a direct appeal of a conviction. Second, it interpreted the Act not to 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 occurred.” Finally, the appellate court agreed with Hamdan that “the international law of war did not – and still does not – identify material support for terrorism as a war crime,” and thus he could not be prosecuted under 10 U.S.C. § 821.

In the latter regard, the D.C. Circuit addressed the question of whether material support for terrorism was an international-law war crime, and held that it was not: “International law leaves it to individual nations to proscribe material support for terrorism under their domestic laws if they so choose. There is no international-law proscription of material support for terrorism.... Not surprisingly, therefore, even the U.S. Government concedes in this case that material support for terrorism is not a recognized international-law war crime....”

The appellate court concluded, “We reverse the decision of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.” See: Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012).

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Related legal case

Hamdan v. United States