“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.”

Full opinion here.

18 Responses to “BREAKING NEWS: D.C. Circuit invalidates Salim Hamdan’s material support for terrorism conviction as retroactive application of new offense”

  1. Atticus says:

    A very well written and reasoned opinion. MST is NOT a war crime.  This would seem to strike a death blow to any future prosecutions of the detainees remaining at GITMO who have not done anything greater than MST, and that’s the vast majority of them. 

  2. Atticus says:

    For that matter, it would seem that any conviction, even guilty pleas, are now invalid.  I can think of at least two cases that might now be invalid.

  3. Mike "No Man" Navarre says:

    Not exactly the liberal elitist DC Circuit panel either . . . .

  4. Mike "No Man" Navarre says:

    FN 3 exemplifies the best in dry, judicial humor:

    In his concurring opinion, Judge Ginsburg calls for a change to existing Supreme Court mootness doctrine. In doing so, Judge Ginsburg suggests that Hamdan is in Yemen and has little chance of landing in future trouble in the U.S. legal system. Maybe. Maybe not.

  5. WestCoastDefense says:

    Unanimous … apart from Ginsburg’s concurring opinion as to mootness which, I imagine, was the issue the government was least concerned about.  I suspect the Supremes won’t take it up – anyone think I’m wrong?

  6. Mike "No Man" Navarre says:

    WCD–I suspect the administration won’t even petition for review.  Though the question of how this applies to current conspiracy cases being discussed over at Lawfare raises the ante a bit.

  7. Gene Fidell says:

    I think the government will seek certiorari and that the Court will grant it. The mootness argument is DOA, but I can see the Court being interested in the rest, despite its unwillingness to weigh in on the habeas cases.

  8. WestCoastDefense says:

    I suspect Steve Vladek’s statement  is telling “If today’s decision is a loss for anyone, it’s a loss for the commission system itself, in which, without any dissent, the trial judge and Court of Military Commission Review held that it was simply beyond question that MST was a recognized violation of the international laws of war. That view received exactly zero votes from a very conservative panel of a court that has not exactly been sympathetic to claims by Guantanamo detainees. It’s hard to imagine a stronger rebuke of the quality (or lack thereof) of the legal reasoning employed by the military commission or by the CMCR–and that repudiation may be where today’s decision has the greatest ramifications.”

  9. Just Sayin' says:

    Not surprising.  The Commissions are a classic case of “the ends justify the means” mentalities.  When a lawyer loses the ability to think critically they stop being an advocate and turn into just another  political puppet…like the prosecutor who lied about Inspire Magazine to justify the mail raids.  Ends justify the means, right?

  10. Justin Henderson says:

    Anyone else wonder what led the Government to change positions on the law-of-war basis?

    “Not surprisingly, therefore, even the U.S. Government concedes in this case that material support for terrorism is not a recognized international-law war crime.”  Slip Op. at 25.

    Presumably, that was not the Government’s position before the Court of Military Commission Review.  Otherwise, I’m hard-pressed to explain pages 22-71 of that Court’s opinion, which led to the finding that

         “the evidence supporting the 2006 M.C.A. offense of providing material support for terrorism as a pre
         existing law of war offense far exceeds even the ‘substantial showing’ standard advanced in Hamden 
         [sic] that ‘the Government must make a substantial showing that the crime for which it seeks to try
         a defendant by military commission is acknowledged to be an offense against the law of war.’”

    CMCR 09-002 at 73.

    Could the Court of Military Commission Review have possibly written this fifty-page rationale and finding despite the Government’s argument to the contrary?

  11. Dew_Process says:

    “We find appellant’s assignments of error and pleadings, to include his filing on granted issues,to be without merit, and we affirm the findings and sentence.”
    CMCR decision:  http://www.lawfareblog.com/wp-content/uploads/2011/06/hamdan.pdf 

    Small consolation for Hamdan’s detailed counsel who had his Naval career snuffed short because he “wouldn’t play the game.”
    to be without merit, and we affirm the findings and sentence.

  12. Just Sayin' says:

    funny how many good lawyers have had  careers snuffed for not playing the game…

  13. Tami says:

    I think the Government has no choice but to appeal this and argue that it’s a pre-existing crime.  I really don’t see Yemen handing him back to the US for him to be prosecuted in the “right” court for the “right” offense.

  14. Atticus says:

    You mean Mizer?  The guy who is a federal public defender and reserve Commander now?

  15. k fischer says:


    I think that DP meant Charlie Swift.



  16. Dew_Process says:

    ksf- You nailed it!

  17. Phil Cave says:

    That was quick.

  18. k fischer says:


    Did you mean “quick”, as in “swift?”  

    I’ve been to GTMO twice, both trips are good stories.  On my first trip down to GTMO back in ’05, I sat next to Charlie Swift who lectured me on the Constitution and gave me some advice regarding my client who was facing court-martial.  Obviously, he’s a smart guy.  I toured the facilities down there and our guide, a LTC, talked about the defense attorneys who represent the detainees.  His tone had a twinge of disdain in it.  When I told him I sat next to LCDR Swift, he immediately exclaimed, “He’s the worst!” 

    On my second trip exactly a year later, the pilot told those sitting on the left side of the plane to look at Port Canaveral, as the space shuttle should be on the launch pad.  The next thing you know he says, “Oh hey, look it’s lifting off!  I don’t think we should be close to this area.”  I grew up in Vero Beach and saw many a  launch, but nothing compared to seeing the shuttle flying past you 55,000 feet in the air about two miles away.