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.