Hamdan Ruling Shines Light on War Crimes Concern

Washington, D.C. – Human Rights First welcomes the D.C. Circuit Court of Appeal’s decision reversing Salim Hamdan’s military commission conviction. The three judge panel unanimously held that the conviction could not stand because the government unlawfully prosecuted Hamdan for acts that were not considered war crimes at the time. “The gig is up on this case and every other flawed military commissions case like it. It’s a basic rule of law principle that a defendant can’t be prosecuted for acts that were not criminal at the time they were committed,” said Human Rights First’s Raha Wala. “That is exactly was happened in this case.” Hamdan was convicted of providing “material support to terrorism” – a crime that is a routine offense in the federal criminal code, but has no support as an internationally recognized war crime triable by the law of war military commissions at Guantanamo. “Material support” was codified in the Military Commissions Act of 2006, well after Hamdan’s allegedly unlawful conduct. The D.C. Circuit held that the Hamdan’s prosecution violated the prohibition against “ex post facto” punishment, which prevents the government from prosecuting individuals for crimes that were not recognized as unlawful at the time. The D.C. Circuit’s ruling could have far-reaching impacts on the military commissions system, calling into question any prosecutions of offenses that are not internationally recognized war crimes. “Military commissions will never be the same after today’s ruling that laid bare a key problem with these prosecutions,” added Wala. “Most of the military commissions cases, including the ongoing prosecution against al Nashiri that will resume next week at Guantanamo, have relied in substantial part on material support, conspiracy, and other charges that are not and have never been internationally recognized war crimes. All of these prosecutions are now in jeopardy.” Human Rights First notes that in light of the D.C. Circuit decision, the Obama Administration should not pursue any further military commissions prosecutions and seek alternative venues – such as federal courts – for any individuals slated for prosecution by military commission. “The Obama Administration must work with Congress to overturn restrictions on transferring detainees to the United States for prosecution in civilian courts,” said Wala. “Guantanamo detainees who are believed to have committed crimes should be prosecuted in U.S. civilian courts or appropriate courts in a foreign state that has jurisdiction.”