Hamdan, you may recall, was Osama Bin Laden’s driver and cook, and as such was believed to have lots of insider information regarding the terror chief’s plans. He was convicted of Material Support to Terrorists, which was not a crime under US law at the time he engaged in the acts for which he was convicted.
In a unanimous opinion:
“Because we read the Military Commissions Act not to sanction retroactive punishment for 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. We reverse the decision of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.”
Hamdan had already served the vast majority of the 66 months to which he was originally sentenced. He was deported to Yemen, from where he continued his legal fight that culminated in today’s decision.
I have no information as to whether or not the Government will seek certoriari at the US Supreme Court. This particular ruling has been described as “a lightning bolt at the heart of the military commissions system” by a military defense attorney of my acquaintance.
In other Military Commissions news, the tribunal resumed hearings on Khalid Sheik Mohammed and four charged co-conspirators.
burnspbesq
Good analyses of the Hamdan decision at SCOTUSBlog and Lawfare.
We also started to dig into it in the comments to Kay’s post about the denial of cert in the Ohio early voting case.
No doubt about it, the D.C. Circuit got this one right.
poco
Thanks Sooner. This is a good ruling. What does seek certoriari mean?
Soonergrunt
I always thought there was something immoral about the military commissions system, and how it made things illegal for people that had never been illegal before, and especially without telling them ahead of time. In many ways it seems to me to be a system that is geared to produce convictions without respect for justice.
Forum Transmitted Disease
Wingnut howling has commenced. Oh they are pissed.
Of course this will go to the Supremes, 6-3 upholding the circuit court decision is my bet.
me
@poco: Asking for an appeal.
Soonergrunt
@poco: it’s the term used when a party to a lawsuit appeals to the Supreme Court, because they are not appealing, in the strictest sense of the term (according to my VERY limited legal understanding.)
http://en.wikipedia.org/wiki/Certiorari
Writ of seeking judicial review recognized in U.S., Roman, English, Philippine, and other law, meaning an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review.
joes527
@Soonergrunt: Ignorance of what the law is going to be at some unspecified time in the future excuses no one.
Steve
This could not have been a more conservative three-judge panel. For those keeping score, the judges were Brett Kavanaugh, Douglas Ginsburg, and David Sentelle.
pseudonymous in nc
@Soonergrunt:
It’s a further kludge on the jurisdictional kludge that was Gitmo and all manner of due process kludges. Whether it is a better kludge than the traditional one of shooting people out of sight and burying them in unmarked graves is a matter of opinion, because at least that approach doesn’t pretend to be something it isn’t.
It probably gets four votes for cert, though I don’t see a majority to overturn.
Professor
The question is;Is Hamdan going to get compensation for the torture he endured and the time he spent in jail? I hold my head in shame for this barbarity!
jgaugust
@Soonergrunt, @poco: Pretty much, yeah. Asking for a grant of certiorari, done at both the state and federal levels for supreme courts, is done because those courts are purely courts of appeal (except in the extremely rare instance that they are the court of original jurisdiction). Technically, state and federal supreme courts do not have to take any appeals or make any rulings (although there are some rules regarding the requirement to hear appeals on death penalty cases – someone will have to do a better job at explaining what those are than I can).
This could be a very interesting case to be taken up to SCOTUS given that the Court already ruled once in this case and it is rare that the Court takes up multiple appeals in the same case. That said, it is somewhat unclear where exactly this Court stands on allowing military tribunals under the MCA, so there could be a reason to take this case and clarify some of the problems that exist under Hamdi and Hamdan.
Of course, though, the D.C. Circuit got this right. So kudos to them.
poco
@Soonergrunt: Thanks Sooner and me. So, its not exactly an appeal, but asking for a judicial review.
MikeJ
@pseudonymous in nc:
I doubt it. He’s back in Yemen, they’ll say it’s moot.
PeakVT
@Forum Transmitted Disease: Activist judges!
Except in this case, they aren’t.
Uncle Cosmo
IANAL, bu isn’t this–
–like, a no-brainer? As in, U.S. Constitution, Article I, Section 9:
If the MCA did in fact “sanction retroactive punishment for new crimes” it would be the very definition of an ex post facto law, nyet?
Culture of Truth
Former Chief Gitmo prosecutor:
“I am pleased that the U.S. Court of Appeals for the D.C. Circuit upheld international law and the law of war.”
“this is another body blow to the credibility of the already beleaguered military commissions.”
“I personally approved the material support charges against Hamdan and Hicks in February of 2007. I realized later on that I was mistaken on both counts.”
Culture of Truth
One of the authors of the opinion is Douglas Ginsburg. heh
Forum Transmitted Disease
@Professor: That will help Hamdan a lot. Your anguish on behalf of the taxi driver will move mountains; your blog posts shall grease the wheels of justice, your desire to see someone in uniform pay for this atrocity will yield mansions of iron and fields of gold for poor Mr. Hamdan.
Sadly, I can’t help but notice that you’re posting during prime GOTV hours, so I will assume you’re doing nothing of consequence to actually assure that Mr. Hamdan will get anything at all. Anguished posts to a freely accessible blog that isn’t yours doesn’t count, BTW.
Yutsano
Needs moar Free Bradley Manning.
Culture of Truth
Perhaps, but surprisingly six US military officers acquitted Hamdan in a miltary tribunal of charges of conspiring with bin Laden re Sept. 11, the 1998 bombings in Africa, and the attack on the USS Cole in Yemen, and other charges.
Svensker
Yay.
That is all.
eemom
How comes it that there have been 20+ comments and nary an “Obama is a war criminal” in the bunch?
Soonergrunt
@eemom: Because TK421 missed the thread?
burnspbesq
@eemom:
Because someone hog-tied and muzzled mclaren?