BY GRETCHEN COTHRON — On October 16, 2012, the United States Court of Appeals for the District of Columbia Circuit overturned the conviction of Salim Hamdan for supporting terrorism. Hamdan v. United States, 11-1257, 2012 WL 4874564 (D.C. Cir. Oct. 16, 2012). Hamdan’s conviction was based on his activities as Osama bin Laden’s driver and bodyguard from 1996 to 2001. Hamdan was captured in 2001 and sent to the U.S. Naval Base detention center at Guantanamo Bay, Cuba.
Hamdan was convicted in 2008 for “providing personal services in support of terrorism by driving and guarding” Osama bin Laden. His conviction did not stem from any specific acts of terrorism. Hamdan was sentenced to sixty-six months in prison. He was returned home to Yemen and set free in January 2009 based on credit for time served in detention at Guantanamo Bay.
The legal issues in this appeal were: first, whether Hamdan’s appeal was moot because he had already released from U.S. custody and returned home. “Second, does the Executive have authority to prosecute Hamdan for material support for terrorism on the sole basis of the 2006 Military Commissions Act—which specifically lists material support for terrorism as a war crime triable by military commission—even though Hamdan’s conduct occurred from 1996 to 2001, before enactment of that Act? Third, if not, did the pre-existing statute that authorized war-crimes military commissions at the time of Hamdan’s conduct—a statute providing that military commissions may try violations of the “law of war,” 10 U.S.C. § 821—proscribe material support for terrorism as a war crime?” Hamdan at 1.
The court held that Hamdan’s case was not moot because it was a direct appeal of a conviction. The U.S. justice system has permitted direct appeals of convictions for many years. Hamdan at 2. The D.C. Circuit is authorized to hear direct appeals from military commissions. 10 U.S.C.A. § 950g.
The second question, whether the executive was precluded from charging Hamdan of crimes that were committed prior to the enactment of the 2006 Military Commissions Act, was based on the Ex Post Facto Clause of the U.S. Constitution. U.S. Const. art. I, § 9. Under this clause, no laws can be passed to criminalize behavior that was not criminal at the time the behavior occurred. Due to this constitutional clause, the court determined that the Military Commissions Act of 2006 could not be interpreted to authorize “retroactive prosecution of crimes that were not prohibited … at the time the conduct occurred.” Hamdan at 2.
Because Hamdan could not be charged under the 2006 Military Commission Act, the third question in the appeal arises. Whether the prior statute 10 U.S.C. § 821 permitted the trying of Hamdan by a military commission for his acts by arguing that his acts fell under the statute’s definition of “violations of the ‘law of war,’” which the statute references as “international law of war.” Id. The court concluded that while the international law of war proscribed a variety of actions as war crimes, at the time of Hamdan’s actions, the international law of war did not—and still does not—“proscribe material support for terrorism as a war crime.” Id.
Hamdan’s conviction was overturned for the above reasons. It is unknown whether the U.S. will attempt to retry Hamdan, as it can be presumed that he is in Yemen, and will stay there, forcing the U.S. to go through extradition procedures to reach him. Knowing the Hamdan already served his time and was released prior to this appeal is likely to weigh heavy on any decision regarding retrying him.