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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And I'm Robert Siegel.
Today, a federal appeals court overturned the conviction of Osama bin Laden's former driver. His name is Salim Hamdan and this is not the first case with his name in the title. In 2006, in Hamdan versus Rumsfeld, the Supreme Court ruled that the Bush administration's military commission system at Guantanamo was unconstitutional. Hamdan was released from Guantanamo several years ago, but today's ruling could affect detainees who are still there.
NPR's Dina Temple-Raston is here to explain this. And, Dina, first of all, tell us more about what the court ruled today.
DINA TEMPLE-RASTON, BYLINE: Well, at the most basic level a three-judge panel of the U.S. Court of Appeals in D.C., said Hamdan was wrongly convicted. He was found guilty of providing material support to a terrorist organization by the military commissions at Guantanamo. Material support is a charge that just means you helped a terrorist organization in some way.
Hamdan was Osama bin Laden's driver from about 1996 to 2001. And prosecutors said, and a military jury agreed, that amounted to supporting a terrorist organization.
What the court decided today was that Hamdan couldn't be charged with material support because he was bin Laden's driver. When he was bin Laden's driver, material support wasn't a recognized crime under the Military Commissions Act; that didn't happen until 2006.
SIEGEL: And what changed in 2006?
TEMPLE-RASTON: Well, the rules governing military commissions changed. And that was because of Hamdan, too. Remember the military commissions are those special courts for suspected terrorists held at Guantanamo. And Hamdan, as you had said, had appealed his detention at Guantanamo all the way to the Supreme Court. And the Supreme Court ruled that the commissions, as they were set up at that time, are unconstitutional.
So that's why Congress in 2006 had to rewrite these laws governing the commissions. And one of the things they did is add this material support as a crime. Today, the appeals court basically said if a detainee committed material support before Congress rewrote that law, they can't be charged with it in a military commission.
SIEGEL: Well, let's say now this would affect people who are in Guantanamo. Would it reverse convictions for others who had already been tried and convicted at Guantanamo?
TEMPLE-RASTON: Well, Hamdan is one of the few cases in which the only convicted charged material support. And, as you said, he was sent back to Yemen several years ago, so that doesn't really affect him much. Where it could have a really big impact is on cases that are in the pipeline. It could affect detainees at Guantanamo accused of being part of Al-Qaida before 2006, but of not plotting any specific terrorist act.
The prosecutors might have tried to charge them with material support and now they can't.
SIEGEL: Now they can't. How many people would this affect, do we know?
Well, that's the thing. It's unclear. There are 166 detainees still at Guantanamo and the number of those who are awaiting a trial is probably somewhere between 16 and 60. And we don't know what kind of evidence prosecutors have on them. But there was the sense that a good number of them were just, you know, foot soldiers and more likely to be charged with material support. Now prosecutors will have to charge them either with something else or hold them indefinitely.
So does that make today's ruling a big setback for the military commission system?
TEMPLE-RASTON: When it comes to the big marquee cases that people are really watching, probably not. The 9/11 trial of Khalid Shaikh Mohammed and the four other men accused of plotting the attacks on the Twin Towers and - they're still in pretrial motions. In fact, those are going on this week. And clearly, they're being charged with more than just material support.
But it's those lower-level detainees, it's possible the only way to try them was with this lesser charge. And now that really isn't available to prosecutors. It could make a great argument for moving these lower-level detainees into U.S. federal court. Material support is a perfectly legal charge there. But Congress has made moving detainees to the U.S. for trial difficult, if not impossible. So it's unclear whether this ruling might have sort of an ancillary effect on that.
SIEGEL: OK. Thank you, Dina.
TEMPLE-RASTON: You're welcome.
SIEGEL: That's NPR's Dina Temple-Raston. Transcript provided by NPR, Copyright NPR.