10/16/2012 07:07 pm ET Updated Oct 22, 2012

Salim Hamdan Dismissal Jeopardizes Remaining Guantanamo Military Trials


WASHINGTON -- A federal appeals court decision to overturn the conviction of Salim Hamdan, Osama bin Laden's driver, may vastly complicate trials for many of the remaining terrorist suspects at Guantanamo Bay, and make even more untenable any solution for dealing with those who can neither be tried nor released.

Hamdan had been convicted by a military commission of providing material support to terrorists, but the conservative U.S. Court of Appeals for the D.C. Circuit threw out the conviction in a ruling announced Tuesday. The appeals court in Washington said that providing such support was not a crime under the international rule of law at the time that Hamdan was linked to Bin Laden.

Hamdan had been tried under the 2006 Military Commissions Act, which Congress was forced to write after courts overturned Hamdan's first conviction in the original military court set up in the Bush administration to prosecute terrorism suspects. The D.C. Circuit concluded the 2006 law could not be applied retroactively, handing a stinging rebuke to the military commission judges and lawyers.

But the ruling also has a potential immediate practical impact: Any suspects facing charges that had not been considered violations of international law of war before 2006 may be cleared under similar reasoning.

"This calls into question the fundamental legitimacy of the military commission system," said Raha Wala, counsel at the
Law and Security Program of Human Rights First. "You have a law of war tribunal trying to prosecute people for what the court has now said are not law of war violations, and it's trying to do so retroactively in violation of fundamental due process principles."

Of 166 captives still held at the Guantanamo prison -- at a cost of about $800,000 a year each -- the Obama administration has designated 36 for trial. All are for crimes allegedly committed before 2006. It is not known outside of the administration what specific crimes are charged, and the Obama White House has suggested it would shy away from material support charges that Hamdan was convicted of.

But a similar category of charge involves conspiracy, also not generally recognized under the law of war.

Indeed, such a case is on appeal currently by the same court -- the 2008 conviction of Ali Hamza Ahmad Suliman al Bahlul. Al Bahlul, Bin Laden's publicity director and personal assistant, was convicted by the military commission of providing material support, as well as conspiracy.

Taking the charge of conspiracy out of the equation may leave the alleged 9/11 plotters as the only detainees at Guantanamo who can be brought before military commissions.

At the same time, Congress has barred transferring any of the suspects to federal court, where they could be tried.

The case also shines a harsh light on current law, passed as part of the 2012 National Defense Authorization Act, which allows people to be held indefinitely on charges more vague than what the court found impermissible in Hamdan's case. A provision of the 2012 NDAA says anyone, including Americans, can be held if suspected of providing undefined "substantial support" to forces associated with al Qaeda.

The Obama administration has pledged not to use that part of the law. But a future administration is not bound by that pledge.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.

CORRECTION: An earlier version of this story misidentified the court that overturned Salim Hamdan's conviction. It was the U.S. Court of Appeals for the D.C. Circuit, not the U.S. Court of Appeals for the 2nd Circuit.



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