Oct. 16 (Bloomberg) -- A U.S. appeals court threw out the 2008 conviction of Osama bin Laden’s former driver by a military commission, ruling he was wrongly charged for conduct that at the time wasn’t a crime.
The U.S. Court of Appeals in Washington vacated Salim Hamdan’s conviction by the military tribunal at a U.S. Navy base in Guantanamo Bay, Cuba, saying that the Military Commissions Act of 2006 didn’t authorize retroactive prosecution of acts that hadn’t been classified as war crimes.
“At the time, the international law of war did not proscribe material support for terrorism as a war crime,” Circuit Judge Brett Kavanaugh wrote for the three-judge panel in today’s opinion. “Hamdan was not charged with aiding and abetting terrorism or some other similar war crime.”
Hamdan, who was captured during the U.S. invasion of Afghanistan in November 2001 and sent to Guantanamo two months later, was the first terror suspect found guilty at a U.S. military war-crimes trial after the Sept. 11 attacks. He was convicted of providing “material support for terrorism” for serving as bin Laden’s driver in Afghanistan.
A jury of six military officers cleared Hamdan of conspiring with bin Laden and other top al-Qaeda operatives to carry out the Sept. 11 attacks, the 1998 bombings of the U.S. embassies in Kenya and Tanzania, and the 2000 attack on the USS Cole in Yemen.
Hamdan was also cleared of charges he transported SA-7 surface-to-air missiles in Afghanistan to attack U.S. forces.
Hamdan’s appeal to the U.S. Supreme Court led to the 2006 ruling that invalidated military tribunals ordered by President George W. Bush and forced Congress to enact legislation reconstituting the commissions.
While the amended statute added material support for terrorism as a new war crime, it didn’t provide for added crimes to be prosecuted retroactively, the court said. Because of that omission, the judges said they didn’t have to address the constitutional issues raised by criminalizing Hamdan’s conduct after the fact.
Dean Boyd, a Justice Department spokesman, said the government is reviewing the opinion.
“We are quite pleased with the outcome of the decision and the vacation of the conviction against our client,” said Harry Schneider, a partner with Seattle-based Perkins Coie LLC, which represented Hamdan. “It’s a very important decision for Americans and the rule of law and our judicial system.” He said he was trying to notify Hamdan of the ruling.
The ruling “upholds an ancient and very fundamental principle of law, which is that no one can be held criminally liable for conduct that was not a crime at the time it was committed,” said Perkins Coie partner Joseph McMillan, who argued Hamdan’s case.
Hamdan, who was sentenced to 5 1/2 years in prison, was released in Yemen by the U.S. military in 2009. The three judges, all appointed by Republican presidents, ruled that under Supreme Court precedent Hamdan was entitled to pursue appeals to throw out the conviction regardless of his release.
The United Nations has criticized the commissions, where the jury is made up of military officers, and in 2007 urged then-President Bush to close the detention center and ensure just treatment for detainees.
The U.S. Navy has maintained a base at Guantanamo since 1898. The land was leased under a 1903 treaty with Cuba that the government of Fidel Castro called invalid.
A military commission at Guantanamo opened a week of preliminary hearings today for the accused mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed, and four others.
The proceedings are aimed at setting rules of a trial for the defendants, who are accused of plotting the attacks that used hijacked passenger planes to destroy the World Trade Center in Manhattan and damage the Pentagon, killing almost 3,000 people.
The case is Hamdan v. U.S., 11-1257, U.S. Court of Appeals, District of Columbia (Washington).
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