By Nina Shapiro

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.

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.

*See Also: Driving Bin Laden: Salim Hamdan

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.

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By John Bellinger

I was out of the country last week and missed the opportunity to weigh in promptly on the Hamdan decision.  In reading the reactions, I have noted that many human rights and civil liberties groups have insisted that the decision proves, more than ten years later, that Guantanamo detainees should have been tried in federal court rather than military commissions.    Bobby responded with a typically thoughtful post questioning whether Hamdan could actually have been tried in federal court for material support for terrorism for his acts prior to November 2001 because the federal material support statutes (18 USC 2339A and 2339B) were not amended to apply extraterritorially until November 2001 and 2004, respectively.  I simply want to expand on Bobby’s comment by noting that this was a significant  obstacle for prosecution in federal court of the majority of Guantanamo detainees.

During the Bush Administration, human rights groups and many foreign (especially European) governments insisted that ALL Guantanamo detainees SHOULD be prosecuted in federal court, or released.  But this argument, while based on an understandable and strongly supportable policy preference, was premised on the assumption that all detainees COULD be tried in federal court.  In fact, it was always my understanding from the Department of Justice that, as with Hamdan, many if not most detainees could NOT be prosecuted in federal courts for many of their actions prior to November 2001 (such as training in al Qaida training camps), because 2339A and 2339B did not apply to extraterritorial acts of non-nationals.  As a result, it is misleading for human rights and civil liberties groups (and the New York Times editorial board) to insist that all Guantanamo detainees should be tried in federal court.  In fact, many of them could not have been tried in federal courts and would have to have been released — not because they were “innocent” of terrorist acts (as their defense counsel have vigorously asserted), but because they had not committed federal crimes.  It is my understanding that this is a major reason why the Obama Administration, which had been expected to jettison military commissions and to rely only on federal courts, reluctantly decided in early 2009 to retain them.

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By Shaun Tandon (AFP)

WASHINGTON — A US court Tuesday threw out the conviction of Osama bin Laden’s former driver who was once jailed at Guantanamo Bay, rejecting government charges that material support to terrorism is a war crime.

While Salim Hamdan has already been freed, the Yemeni’s appeal could have broader ramifications as everyone convicted by the military commission at the US base in Cuba has been accused of material support to terrorism.

The US Court of Appeals in Washington said that a law that listed material support for terrorism as a war crime — approved in 2006 in response to Hamdan’s case — could not apply to him retroactively.

US prosecutors instead had to rely on international law, which defines some forms of terrorism — such as the intentional targeting of civilians — as war crimes, the court said.

“But the issue here is whether ‘material support for terrorism’ is an international-law war crime. The answer is no,” Judge Brett Kavanaugh wrote for the court in an opinion with which two other judges largely agreed.

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By: Michael Gsovski

More than four years ago, Georgetown Law School professor Neal Katyal was looking to represent a detainee at Guantanamo Bay who had not “pulled the trigger” on an American. In front of a crowd of about 75 at Ryan Family Auditorium in Technological Institute on Thursday night, he told the audience how his eventual client, Salim Ahmed Hamdan, had been described to him.

“‘I’ve got a guy who drove a bad guy around,’” Katyal recalled the chief prosecutor telling him. “I asked him who it was and he said, ‘That’s the bad news: It’s Osama bin Laden.’ ”

The resulting case, Hamdan v. Rumsfeld, eventually came before the U.S. Supreme Court. The Court ruled 5-3 in 2006 that the military commissions the Bush administration established to try enemy combatants were illegal, both under the Uniform Code of Military Justice and under Article 3 of the Geneva Convention. Katyal was invited to campus as the keynote speaker of the Muslim-cultural Students Association’s Islam Awareness Week.

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