Salim Ahmed Hamdan v. United States of America

Court	Court of Appeal for the District of Columbia, United States
Case number	11-1257
Decision title	On Petition for Review from the United States Court of Military Commission Review
Decision date	16 October 2012
Parties	Salim Ahmed Hamdan United States of America
Other names	Hamdan II
Categories	War crimes
Keywords	civilian objects, common Article 3, destruction of property, international armed conflict, jurisdiction, violence to life
Links	Decision on Petition for Review from the United States Court of Military Commission Review
Other countries involved	Afghanistan Cuba

Summary

Salim Ahmed Hamdan, a Yemeni citizen, was Osama bin Laden’s driver. Captured in Afghanistan in 2001, he was transferred to the United States detention centre at Guantanamo Bay in 2002. Initial attempts to make him stand trial for crimes of conspiracy before a United States military commission were ultimately unsuccessful as the United States Supreme Court ruled in 2006 that trial before such a commission would be unlawful. In response, Congress passed the 2006 Military Commissions Act on the basis of which Hamdan was newly charged for counts of conspiracy and material support for terrorism. He was tried and convicted by a military commission for material support for terrorism and sentenced to 66 months’ imprisonment, which he concluded in his native Yemen in 2008.

The present decision is the result of his appeal against his conviction. The Court of Appeals for the District of Columbia vacated Hamdan’s conviction on the grounds that material support for terrorism was not a war crime under international law prior to 2001 at the time of Hamdan’s relevant conduct, therefore the military commission could not try and convict him on this basis.

Procedural history

In late 2001, Hamdan, the former driver of Osama Bin Laden, was captured in Afghanistan and detained by American military forces. In June 2002, Hamdan was transferred to the detention facility set up by the United States Department of Defense at Guantanamo Bay, Cuba.

On 3 July 2003, the President of the United States designated Hamdan for trial by military commission.

In December 2003, Hamdan was placed in isolation in Camp Echo, a facility within the detention centre at Guantanamo Bay and military counsel was appointed for him. On 12 February 2004, Hamdan’s counsel filed a demand for charges and speedy trial under Article 10 of the Uniform Code of Military Justice (UCMJ).

On 23 February 2004, the Appointing Authority, designated by the Secretary of Defense to issue orders establishing and regulating the military commissions, ruled that the UCMJ did not apply to Hamdan’s detention. On 6 April 2004, Hamdan’s counsel filed before the District Court for the Western District of Washington a petition for habeas corpus.

On 9 July 2004, Hamdan was formally charged with conspiracy to commit: attack on civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism.

On 8 November 2004, the District Court for the District of Columbia held that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention.

On 15 July 2005, the Court of Appeal for the District of Columbia reversed the decision and held that Hamdan could be tried by military commission. On 29 June 2006, the Supreme Court reversed the decision of the Court of Appeal and held that Hamdan’s trial by military commission would be unlawful.

In response, the United States Congress subsequently passed the Military Commissions Act of 2006.

On 6 August 2008, a United States Jury composed of six military officers convicted Hamdan of providing material support for terrorism. He was acquitted on the charge of conspiracy and three of the eight charges of material support. He was sentenced to 66 months’ confinement, but the military judge credited him with 61 months and 8 days for the time he spent in pre-trial detention. On 24 November 2008, Hamdan was transferred to Yemen where he remained in prison until 27 December 2008.

Hamdan appealed his conviction to the US Court of Military Commission Review. By a decision of 24 June 2011, Hamdan’s conviction and sentence was affirmed.

Hamdan appealed to the Court of Appeals.

Legally relevant facts

In 1996, Hamdan travelled from his native Yemen to Pakistan and then on to Afghanisran to participate in jihad, or holy war. He attended an Al Qaeda training camp where he received weapons training and met Osama bin Laden. Later that same year, Hamdan became bin Laden’s driver and personal bodyguard (p. 6).

In August 1998, Al Qaeda operative bombed US embassies in Kenya and Tanzania. Hamdan ws aware that the attack was planned and, around that time, he assisted bin Laden in evacuating from Kandahar and moving around Aghanistan.

In October 2000, Al Qaeda bombed the USS Cole off the coast of Yemen. Around that time, Hamdan returned to Afghanistan from Yemen.

In August 2001, Hamdan drove bin Laden to various planning meetings in Afghanistan. In the days prior to September 11, Hamdan assisted bin Laden in evacuating his compound and moved him to a series of locations around Afghanistan (p. 7).

In November 2001, Hamdan was captured in Afghanistan driving a vehicle containing two anti-aircraft missiles. He was turned over to the US authorities and transferred to Guantanamo Bay (pp. 8- 9).

Core legal questions

Can the United States Government prosecute Hamdan for material support for terrorism as a war crime on the sole basis of the 2006 Military Commissions Act even though his conduct occurred from 1996 to 2001, before the enactment of that Act?
In the negative, did the pre-existing statute that authorised war-crimes military commissions at the time of Hamdan’s conduct proscribe material support for terrorism as a war crime?

Specific legal rules and provisions

US Military Commissions Act.
US Uniform Code of Military Justice.

Court's holding and analysis

The 2006 Military Commissions Act does not authorise the retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under US law at the time the conduct occurred. Hamdan’s conviction may only be affirmed if the relevant statute that was in force at the time of his conduct encompassed material support for terrorism as a war crime (pp. 15-16).

The relevant statute in effect at the time of Hamdan’s conduct was 10 USC § 821 which authorised military commission to prosecute individuals for violations of the law of war (p. 19). The law of war in question is the international law of war (p. 19). Whilst international law establishes at least some forms of terrorism as war crimes (e.g. intentional targeting of civilian populations), material support for terrorism, the crime for which Hamdan was convicted, is not an international law war crime. It has no support in either treaty or custom (pp. 22-24).

Hamdan’s conviction for material support for terrorism thus cannot stand. The decision of the Court of Military Commission Review is reversed and Hamdan’s conviction is vacated (p. 28).

Instruments cited

US Military Commissions Act (MCA) of 2006, Public Law No. 109-366, 2006.
US Uniform Code of Military Justice, Chapter 47 of Title 10 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.

Related cases

A very important, related case is Rasul v. Bush (2004). This case marked the beginning of litigation by the Center for Constitutional Rights against the US' treatment of Guantanamo detainees and their procedural rights. In this case, the US Supreme Court ruled that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in the course of armed conflict and subsequently detained in Guantanamo Bay.

The litigation eventually resulted in the 2008 Boumediene v. Bush-ruling, where the Supreme Court found that Guantanamo detainees have a right to file habeas corpus petitions in order to review the lawfulness of their detention.