On October 13, 2012, the U.S. Court of Appeals in a unanimous (3-0) decision overturned the conviction of Salim Ahmed Hamdam, a former driver and bodyguard for Osama bin Laden whose case has been in the Military Commission Tribunal in Guantanamo and heavily litigated in the U.S. Article III courts. In Salim Ahmed Hamdan v. U.S., the appellate court held that the Military Commissions Act of 2006 does not 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. Hence, Hamdan's conviction can be affirmed only if the relevant statute that was in existence at the time of his conduct - 10 U.S.C. Sec. 821 - encompassed material support for terrorism.
When Hamdam committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. However, the international law of war did not proscribe material support for terrorism as a war crime. Hence, the statute did not criminalize material support for terrorism as a war crime.
Since the Military Commissions Act does not retroactively punish new crimes and since material support for terrorism was not a pre-existing war crime under 10 U.S.C. Sec. 821, Hamdan's conviction for material support for terrorism cannot stand. The appeals court reversed the judgment of the Court of Military Commission Review and directs that Hamdan's conviction for material support for terrorism be vacated.
Mr. Hamdan, a Yemeni, was captured in Afghanistan in 2001. His counsel had challenged his detention and won a landmark Supreme Court case in 2006 that found the military commission system for prosecuting war crimes unconstitutional and in violation of American military law and the Geneva Conventions. Thereafter, Congress enacted new laws, resulting in Mr. Hamdan’s trial and conviction in 2008. Because he had already served so long in prison, he was released later that year to Yemen.
Even after his release, he continued to challenge his conviction. It was upheld in 2011 by the Court of Military Commission Review, which the Appeals Court has now reversed. The appellate court ruled that, despite Hamdan's release from custody, his case is not moot. It is a direct appeal of a conviction. The Supreme Court has long held that a defendant's direct appeal of a conviction is not mooted by the defendant's release from custody.