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Media Alerts - Hamdan v. United States - D.C. Circuit
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December 6, 2012
  Hamdan v. United States - D.C. Circuit
Headline: D.C. Circuit vacates Hamdan conviction: Military Commissions Act not retroactive and material support for terrorism not barred by pre-existing international law

Area of Law: National Security Law; Military Commisions Act of 2006

Issue(s) Presented: Whether a Guantanamo detainee may be convicted of "material support for terrorism" under the Military Commissions Act of 2006 for pre-2006 conduct.

Brief Summary: A military commission convicted Salim Hamdan, an al Qaeda member captured in Afghanistan in 2001, of "material support for terrorism," a war crime under the Military Commissions Act of 2006 (MCA). The conviction was based on actions Hamdan took between 1996 and 2001, before enactment of the MCA. Although Hamdan served his full sentence and ultimately gained release in late 2008, he continued to pursue direct appeal of his conviction, arguing that Congress lacked authority to make material support for terrorism a war crime; that the MCA could not retroactively apply to pre-2006 conduct; and that the statute that did govern during the time of his conduct did not authorize prosecution of material support for terrorism. The Court of Military Commission review affirmed his conviction, and a unanimous panel of the D.C. Circuit reversed. The D.C. Circuit first concluded that the issue was not moot, inasmuch as Hamdan was pursuing a direct appeal. Turning to the merits, the court decided that the MCA did not apply retroactively in order to avoid serious constitutional questions under the Ex Post Facto Clause. Because of this conclusion, a majority of the court found no need to address the antecedent question, whether Congress had power to criminalize material support for terrorism at all. Turning to the question whether pre-MCA law proscribed material support for terrorism as a violation of the law of war, the D.C. Circuit found the answer fairly clear. Emphasizing that the "law of war ... has long been understood to mean the international law of war," the court concluded that neither major conventions on the law of war, prominent international tribunals, nor leading international law experts identified material support for terrorism as a war crime. As such, the D.C. Circuit determined that it was not a pre-existing war crime and ordered that Hamdan's conviction be vacated.

Argument (if known): 5/3/2012

Date of Issued Opinion: 10/16/2012

Docket Number: No. 11-1257

Decided: Reversed

Counsel (if known): Joseph M. McMillan, Harry H. Schneider Jr., Charles C. Sipos, Angela R. Martinez, Abha Khanna, Adam Thurschwell, and Jahn C. Olson for Petitioner. John F. De Pue, Lisa O. Monaco, Jeffrey M. Smith, Edward S. White, and Francis A. Gilligan for Respondent.

Author of Opinion: Kavanaugh

Edited: 12/12/2012 at 10:23 AM by Media Alerts Moderator

    Posted By: Brian Graupner @ 12/06/2012 12:53 PM     DC Circuit  

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