A federal appeals court on Tuesday overturned the conviction of Osama bin Laden's former driver and bodyguard, Salim Ahmed Hamdan. If the name sounds familiar, it should. Hamdan was at the center of a Supreme Court case that ruled that the Bush administration's military commission system at Guantanamo Bay, Cuba, was unconstitutional.
The ruling from a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit found that Hamdan's conviction by a military commission for providing material support for terrorism had to be overturned because under the international law of war of the time, his actions — driving bin Laden around — were not defined as a war crime. Hamdan was bin Laden's driver from 1996-2001.
Material support didn't become a war crime until 2006, when Congress passed the Military Commission Act.
"When Hamdan committed the conduct in question," Judge Brett Kavanaugh wrote, "the international law of war did not proscribe material support for terrorism as a war crime. Therefore the relevant statute at the time of Hamdan's conduct ... did not proscribe material support for terrorism as a war crime."
Hamdan was captured in Afghanistan in 2001. His lawyers challenged his detention and eventually won the landmark Supreme Court case Hamdan v. Rumsfeld. The high court ruled that not only was the military commission system unconstitutional, but it was also in violation of American military law and the Geneva Conventions. Congress, as a result, rewrote the Military Commissions Act and, among other things, included material support as one of the charges that the commissions could level against detainees.
Hamdan was one of the few convictions at Guantanamo that came solely as a result of a material support charge. A military commissions jury acquitted him of conspiracy. He was eventually sent back to Yemen and released in 2009. So, in a real sense, the ruling doesn't affect him much.
Officials say where it may have a big impact is on cases at Guantanamo that have yet to be litigated. In particular, it could affect detainees who stand accused of being part of al-Qaida before 2006 but perhaps did not plot any specific terrorist act. Prosecutors might have been preparing to charge them with material support to get them through the system and empty the prison at the naval base. Now this ruling will make that process more difficult.
It is unclear how many detainees could be affected. There are still 166 men behind bars at Guantanamo and a fraction of them — anywhere between 16 and 60 — could be in the pipeline for a trial. Because the evidence against them hasn't been made public, it is hard to tell how many of them would now find themselves in limbo.
There is a sense that a good number of the men held in the various camps on the island were just foot soldiers for al-Qaida. Unless the Justice Department asks the full bench of the appeals court to look at the ruling again, that could mean Guantanamo prosecutors will have to find something else with which to charge lower-level detainees or, alternatively, hold them indefinitely. The Justice Department said in a statement that it is still studying the ruling.
The ruling is unlikely to have much of an effect on the marquee trials now under way, however. The trial of Khalid Sheikh Mohammed and four other men accused of plotting the Sept. 11, 2001, attacks is still in pretrial motions, which have been going on this week. Clearly, the five are being charged with more than just material support.
The U.S. appeals court ruling could have a dramatic impact on lower-level detainees in another way. It could make a great argument for moving their trials into U.S. federal court where material support is a perfectly legal charge. Congress has made moving detainees to the U.S. for trial difficult if not impossible, so the unanswered question is whether that will be affected by Tuesday's ruling.
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