Salim Hamdan was originally charged by a military tribunal with “material support for terrorism” in 2004 after being captured in Afghanistan in possession of weapons and al Qaeda documents. His prosecution was overturned in the Supreme Court case Hamdan v. Rumsfeld [PDF], directly prompting Congress to pass the Military Commissions Act of 2006 in response. Retried under the updated law, Hamdan was sentenced to sixty-six months imprisonment, though granted credit for time served.
Following the completion of his sentence, the U.S. still detained Hamdan for several more months before finally transferring back to Yemen. Once released in 2009, Hamdan continued to petition to have his conviction overturned. In drafting the ruling on the case, Judge Brett Kavanaugh found that Hamdan’s release did not moot the appeal and that the Military Commissions Act was improperly used in the tribunal’s prosecution. The ruling’s summary concludes as follows:
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.
War crimes in this case refers to those acts recognized as illegal by “universal agreement and practice both in this country and internationally.” Such acts of war include those punishable under the Rome Statute, including genocide and mass murder, along with smaller scale acts such as several related to terrorism.
In deciding Hamdan’s appeal, the District Court found that as “material support” was not viewed as a war crime under international law at the time of the passing of the Military Commissions Act — along with the Act’s inability to apply to actions taken in 2001 — the conviction must be vacated.
While the court has overturned this specific conviction, the ruling is unlikely to apply to many other trials either currently under way or completed. Of the cases heard by military tribunal at Guantanamo Bay, as compiled by Human Rights Watch, only one other deals solely with the crime of material support. That defendant, Ibrahim al-Qosi, was convicted after confessing to serving as a driver and cook for bin Laden, but has since been released to Sudan. All other cases involve acts such as attempted murder and conspiracy to commit terrorism.
Also, as a footnote, the Court included a severe limitation on the scope of its ruling:
Our judgment would not preclude detention of Hamdan until the end of U.S. hostilities against al Qaeda. Nor does our judgment preclude any future military commission charges against Hamdan – either for conduct prohibited by the “law of war” under 10 U.S.C. § 821 or for any conduct since 2006 that has violated the Military Commissions Act. Nor does our judgment preclude appropriate criminal charges in civilian court. Moreover, our decision concerns only the commission’s legal authority. We do not have occasion to question that, as a matter of fact, Hamdan engaged in the conduct for which he was convicted.
Had Hamdan not already been released, under this ruling, he could still be held at Guantanamo Bay without further charges. Given the fifty-five prisoners being held still who have been cleared for transfer, this is not outside the realm of imagination.