This Month in Terror Law: Salim Hamdan Wins Again!
The most famous taxi driver in the world is 2-0 in his decade-long legal battle with the United States.
Somewhere in his native Yemen, Salim Ahmed Hamdan is smiling. For the second time in six years, the former driver and bodyguard of Osama Bin Laden has seen his legal rights vindicated by American high courts. This remarkable winning streak hasn't occurred because Hamdan is a paragon of virtue or the innocent victim of circumstance. It has occurred instead, over the course of two administrations, because executive branch officials stubbornly sought to manipulate the rule of law to ensure the result they wanted. They lost more than he won.
Hamdan goes 1-0. In 2006, the United States Supreme Court, in Hamdan v. Rumsfeld, struck down Bush-era tribunal rules which military prosecutors had sought to impose on Hamdan. Those rules, Justice John Paul Stevens wrote, violated the Constitution, the Court's own precedent, and the Geneva Conventions. The Hamdan case wasn't the first or the last of the four Supreme Court rulings that struck down Bush-era tribunal rules between 2004 and 2008. But it was the most definitive: the old tribunals rules had to go.
The government didn't give up after the 2006 Hamdan ruling. The defendant was still in U.S. custody at Guantanamo Bay, and, because of his past proximity to Bin Laden, remained a high-profile terror detainee (and, conveniently, one who had never been water-boarded). The case against Hamdan was largely circumstantial and based significantly on his own statements, made during "enhanced interrogation" sessions in 2001 and 2002. By one count, 40 U.S. officials interrogated him in early 2002.
In August 2008, after revising their tribunal rules, the feds tried again. This time, they won. A six-member panel of military officials convicted Hamdan of providing "material support" to Al Qaeda, but they acquitted him of conspiring to commit terrorism. Because Hamdan already had spent more than half a decade at Gitmo, the U.S. decided to repatriate him to Yemen toward the end of 2008, giving him credit for "time served" before his conviction. He returned to Yemen, where he reportedly remains today, a non-recidivist as near as anyone can tell.
Hamdan goes 2-0. Indeed, the Associated Press reported Tuesday that Hamdan is back driving again, "reportedly working as a taxi driver." So how would you have liked to have been in his back seat when word came that another panel of judges in Washington, this time at the D.C. Circuit Court of Appeals, had overturned his "material support" conviction? In an instant, Hamdan reaffirmed his status as the Face of Guantanamo, a living, breathing symbol of some of the most grievous legal errors America has committed since September 11, 2001.
On Tuesday, in the appropriately-styled Hamdan v. United States, a federal appeals panel said clearly and succinctly that military prosecutors and judges erred in prosecuting and convicting Hamdan on the "material support" charge. In so doing, D.C. Circuit Judge Brett Kavanaugh, one of three Republican-appointees on the panel, relied upon one of the oldest tenants of law: You cannot be convicted of a crime which did not exist at the time you committed the conduct for which you were convicted. It's known as ex post facto.
The charge that generated Hamdan's conviction -- providing "material support for terrorism"-- was labeled by Congress as a "war crime" in 2006. But the conduct that got Hamdan in so much trouble -- hanging out with Bin Laden in Afghanistan -- had occurred between 1996 to 2001. In order to prosecute Hamdan under military tribunal rather than by federal civilian court, the Bush Administration had charged (and convicted) the man with a statutory crime that did not exist when he was captured, and which would not then exist for five more years.
It did not take long for the D.C. Circuit to explain its decision to side with Hamdan: Congress may or may not have had the authority in 2006 to label "material support" charges as "war crimes,' but whether it did or did not, Congress specifically did not intend to permit the "retroactive" prosecution of charges based upon conduct that was not a violation of American law at the time it was committed. And even if Congress had such intent, the court noted, it would be unconstitutional because the Constitution specifically forbids ex post facto laws.
In the end, this was not a close call. And it likely won't impact Hamdan's life one bit -- unless he decides one day to write a book about his unique experience as an "unlawful enemy combatant," a Yemeni taxi driver then and now, who went 2-0 in court against the United States of America (Salim, call your agent). Still, the ruling in Hamdan II is a remarkable thing. It comes after years of decisions from this same court that have failed to hold the executive branch accountable for its strategies and tactics in the prosecution of the detainees.
It comes at a time when the detainees have been largely forgotten as a campaign issue. And it comes at a time, literally, when military prosecutors are trying to push the prosecutions of Khalid Sheik Mohammed and Ramzi Binalshibh closer to the finish line. This week, down in Cuba, a military judge is presiding over a pretrial hearing that includes at least 25 motions, all designed to mold from the current chaos a path to the coming terror "trials of the century." What's the over-under on how soon it is before Hamdan II is cited at Guantanamo?
We'll learn more soon about whether the Obama Administration wants to appeal its loss here (in a just world, the administration would quit while it is behind). And we'll know in the coming months about the scope of the impact this Hamdan decision will have on other detainee cases. Does the precedent immediately strike out other uses of "material support provisions" for conduct before 2006, which would mean virtually every such charge at Gitmo? Imagine the fame that Salim Ahmed Hamdan would have then as he ferries his fares around town.