The United States Court of Appeals for the District of Columbia Circuit overturned the conviction of Salim Ahmed Hamdan for providing material support for terrorism. Hamdan, a Yemeni, was captured in Afghanistan in 2001
The court ruled that the conviction could not stand because ,at the time of Handan’s conviction “under the international law of war in effect at the time of his actions, there was no such defined war crime”:
The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled. [..]
The ruling called into question whether other Guantanamo detainees accused of being part of Al Qaeda but not of plotting any specific terrorist attack can receive military trials.
The opinion was written by Judge Brett Kavanaugh, who worked as a lawyer in the White House for President George W. Bush before he was appointed to the bench. His opinion was largely joined by Chief Judge David Sentelle and Judge Douglas Ginsburg, appointees of Ronald Reagan.
Zachary Katznelson, senior staff attorney at the American Civil Liberties Union, said the decision “strikes the biggest blow yet against the legitimacy of the Guantánamo military commissions, which have for years now been trying people for a supposed war crime that in fact is not a war crime at all.” He said the government should prosecute in civilian courts any Guantánamo prisoners against whom it has enough admissible evidence.
This should come as no surprise to the administration since, as Marcy Wheeler at emptywheel noted in her analysis, this had been predicted (pdf) by an assistant attorney general over three years ago:
There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.
The DC court agreed:
First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.
Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 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. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.
Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. 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. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.
Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.
This ruling could obviously effect the convictions and prosecutions of other Guantánamo detainees. The Administration has yet to announce whether it will appeal, I suspect that they will try.
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