Bin Laden’s Ex-Driver Ducks Terror Convictions

(CN) - Osama bin Laden's former driver was found guilty of a war crime that did not exist while he worked for the al-Qaida leader, the D.C. Circuit ruled, vacating the conviction.

While fighting his detainment at Guantanamo Bay in 2006, Salim Ahmed Hamdan took his case to the U.S. Supreme Court, which ruled that military commissions set up by the Bush administration to try detainees at Guantanamo Bay violated the Geneva Conventions.

In response, Congress passed the Military Commissions Act of 2006, which authorized trying unlawful enemy combatants by military tribunal and specified "material support for terrorism" as a war crime.

Hamdan, who had been captured in Afghanistan in 2001, was tried under the new law for his service under bin Laden since 1996. The military commission convicted him of providing material support to al-Qaida, sentencing him to 66 months in 2008.

The term marked a fraction of the 30-year sentence that prosecutors had recommended, and the commission deemed that Hamdan had already served most of it during detention. Hamdan served the final few months of his sentence in Yemen and was released in January 2009.

The Court of Military Commission Review affirmed Hamdan's conviction in 2011, but the D.C. Circuit reversed Tuesday. A three-judge panel with the court found that Hamdan could not be convicted under a law that illegalized his conduct years after the fact.

"Consistent with Congress's stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize 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," Chief Judge Brett Kavanaugh wrote for the panel (italics in original). "Therefore, Hamdan's conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct encompassed material support for terrorism."

The 2006 act states: "Because the provisions of this subchapter (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes that occurred before the date of the enactment of this chapter." (Parentheses in original.)

Congress knew that retroactively prosecuting individuals for conduct covered by the act might raise constitutional issues, according to the ruling.

"As stated in the statutory text, however, Congress believed that the act codified no new crimes and thus posed no ex post facto problem," Kavanaugh wrote. "Congress's premise was incorrect. The statute does codify some new war crimes, including material support for terrorism."

Finding that Congress cannot enforce the 2006 act retroactively for newly illegalized crimes, the court also noted that neither the Hague Convention nor the Geneva Conventions list material support for terrorism as a war crime.

"Not surprisingly, therefore, even the U.S. Government concedes in this case that material support for terrorism is not a recognized international-law war crime," Kavanaugh wrote.

"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," the 37-page decision states. "We reverse the judgment of the Court of Military Commission Review and direct that Hamdan's conviction for material support for terrorism be vacated."

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