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D.C. Circuit Overturns al Qaeda Driver Hamdan's Conviction

By Robyn Hagan Cain on October 16, 2012 | Last updated on March 21, 2019

The D.C. Circuit has overturned Osama bin Laden's driver's conviction for material support of terrorism.

The appellate court announced on Tuesday that material support of terrorism — a terrorism-related charge in civilian courts — is not a war crime under international law, Politico reports. That means that federal courts can convict a defendant on a material support charge, but military commissions cannot.

In war, when the United States captures or takes custody of alien enemy combatants or their substantial supporters, it may detain them for the duration of hostilities. The U.S. can try unlawful alien enemy combatants before military commissions for their war crimes, but courts had not addressed whether they could be prosecuted under federal statutes.

Salim Hamdan was captured in Afghanistan and transferred to the U.S. Naval base at Guantanamo, where he was detained as an enemy combatant and accused of being an unlawful enemy combatant. He was tried and convicted by a military commission for "material support for terrorism" under the Military Commissions Act based on actions he took as bin Laden's driver from 1996 to 2001 - before enactment of the Military Commissions Act.

At the time of Hamdan's conduct, the extant federal statute authorized and limited military commissions to try violations of the "law of war."

Hamdan was sentenced by the military commission to 66 months imprisonment, with credit for some time served. His sentence expired in 2008.

Although the U.S. could have continued to detain Hamdan until the end of hostilities pursuant to its wartime detention authority, he was released in Yemen in late 2008 when his sentence expired. Still, he continued to appeal his war crimes conviction.

The D.C. Circuit ruled in his favor this week, holding that the Military Commissions Act didn't provide for 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.

The court further concluded that the relevant statute that was on the books at the time of Hamdan's conduct did not encompass material support for terrorism. Accordingly, the court found that Hamdan's conviction for material support for terrorism could not stand.

The ruling also questioned whether other Guantanamo detainees accused of Al Qaeda involvement -- but not of plotting any specific terrorist attack -- can receive military trials, The New York Times reports.

In light of the implications of this decision on unlawful enemy combatant trials, we're expecting the government to appeal this decision.

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