Salim Hamdan v. United States
402 U.S. App. D.C. 471
| D.C. Cir. | 2012Background
- Hamdan, an al Qaeda member who served as Osama bin Laden’s driver/bodyguard, was captured in 2001 and detained at Guantanamo Bay as an enemy combatant.
- He was charged before a U.S. military commission with conspiracy and eight specifications of material support for terrorism for acts 1996–2001, before the 2006 Military Commissions Act (MCA) was enacted.
- The 2006 MCA expanded military-commission crimes to include material support for terrorism, raising ex post facto concerns given Hamdan’s pre-Act conduct.
- Prior to MCA, 10 U.S.C. § 821 allowed commissions to try violations of the law of war, i.e., international-law war crimes, not material support for terrorism as such.
- Hamdan was convicted of several material-support specifications and sentenced, later released in 2009 and remained subject to appeals.
- The court held that Hamdan’s direct appeal is not moot despite his release, but reversed the conviction for material support for terrorism as the MCA cannot retroactively punish conduct not prohibited by law at the time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of Hamdan’s direct appeal | Hamdan's release moots appeal (Ginsburg concurs that moot). | Appeal remains justiciable as a direct challenge to a conviction. | Not moot; direct appeal remains. |
| Retroactivity of the MCA to pre-Act conduct | MCA authorized retroactive prosecution for pre-Act conduct. | MCA legitimate under Congress’s war powers. | MCA cannot retroactively prosecute pre-Act conduct not prohibited as war crime at the time. |
| Whether material support for terrorism was an international-law war crime under § 821 at the time of Hamdan's conduct | Material support for terrorism was a preexisting war crime under the law of war. | MCA expanded to include material support as a war crime. | Not a preexisting law-of-war crime under international law in 1996–2001. |
| Congressional authority under Article I to define material support as a war crime | Congress may define new war crimes under Article I powers. | Article I powers justify MCA’s reach. | Question left undecided; assumed for argument, but retroactivity barred if conduct not prohibited then. |
Key Cases Cited
- Hamdan v. Rumsfeld, 548 U.S. 557 (U.S. 2006) (military commissions and law-of-war limits; ex post facto considerations)
- Ex parte Quirin, 317 U.S. 1 (U.S. 1942) (military commissions authority to try unlawful combatants)
- Sibron v. New York, 392 U.S. 40 (U.S. 1968) (direct appeal mootness presumption for collateral consequences)
- Spencer v. Kemna, 523 U.S. 1 (U.S. 1998) (parole revocation not mooting habeas challenges; collateral consequences issues)
- Calder v. Bull, 3 U.S. 386 (U.S. 1798) (ex post facto principles foundational to interpretation)