After nine years, the case against Osama Bin Laden's onetime chauffeur, Salim Hamdan, is finally over. Hamdan's defense team, housed within the veteran Seattle firm Perkins Coie, heard on Friday that the federal government will not appeal a ruling by the D.C. Circuit Court of Appeals that vacated the Yemeni national's conviction for providing material support for terrorism.
*See Also: Driving Bin Laden: Salim Hamdan
That leaves the D.C. Circuit ruling standing as a precedent that could affect a range of cases tried by U.S. military commissions, including those now pending against accused 9/11 conspirators.As Rick Anderson chronicled in a fascinating cover story, Hamdan was captured in November 2001 as he attempted to pass an Afghan militia guard post. Bin Laden, who had fled that part of Afghanistan by then, wasn't in the car. His escape may have frustrated the U.S. government, but the feds were determined to nail the man they had. They took Hamdan to Guantamo Bay. Anderson writes:
The government would draw a dark picture of Hamdan, noting his alias was "The Hawk," and said bin Laden had held a wedding party for him. He had driven the terrorist chief to news conferences and speeches, and sometimes carried a machine gun--though apparently he never fired it. Still, there was little persuasive evidence that his duties amounted to much more than driving bin Laden and helping run the car pool. As The New York Times put it, "Mr. Hamdan's offenses are not enumerated anywhere, but appear to include checking the oil and the tire pressure.
Hamdan's case followed many twists and turns, through a variety of courts and lawyers. In the end, though, the government was unable to prove its darkest allegations. A military jury acquitted Hamdan of conspiracy in 2008, but found him guilty of a lesser material-support charge. Then, last October, the D.C. Circuit ruled that even that conviction couldn't stand.
Speaking to Seattle Weekly yesterday, defense lawyers Harry Schneider and Joe McMillan explain that a sticking point for the court was whether the material support charge constitutes a war crime, which is all that military commissions are supposed to handle.
"A war crime is an offense recognized by the international community as a whole," McMillan says, explaining the defense team's argument. Providing material support is not one because it's too vague, he contends. In the eyes of the world, he says, only "clearly identifiable offenses" are seen as war crimes-- "murder of civilians, attacking non-combatants, torture, things like that."
In 2006, Congress passed the Military Commissions Act, which does include material support in its list of war crimes. So an argument can be made that the U.S. can use its own definition, no matter what the rest of the world thinks. But Hamdan committed his alleged offenses prior to 2006. So, the D.C. Circuit concluded, they weren't considered war crimes at the time.
Already, the ruling is having an effect on other cases.
A couple of weeks ago, according to Schneider and McMillan, the government noted the Hamdan decision in a filing on an appeals case involving Ali al Bahlul, who received a life sentence after being convicted of conspiracy and providing material support for media work done on behalf of al-Qaeda. According to the reasoning of the Hamdan ruling, the conspiracy charge faces the same problem as material support, as far as being considered a war crime. The government recognized this in its filing, although it indicated that it may seek Supreme Court review in the context of the al Bahlul case.
Even more interesting, the chief prosecutor in the cases of four alleged 9/11 co-conspirators, including self-proclaimed mastermind Khalid Sheikh Mohammed, recommended dropping conspiracy from the charges because of the Hamdan case. The convening authority, charged with determining charges to be heard by military commissions, rejected that advice, the Department of Defense announced last week.
Yet it's clear that the arguments made in the Hamdan case will be heard again, even if Bin Laden's former chauffeur, since reunited with his family in Yeman, won't have to pay attention anymore.