The Pentagon yesterday formally charged Salim Ahmed Hamdan for war crimes before a military commission at the naval detention facility at Guantanamo Bay, Cuba. Hamdan, who served as Usamma bin Laden's personal driver and bodyguard for more than five years, has been detained without charge since 2001. According to the charge sheet released by the Pentagon, Hamdan is charged with two counts of violation of the laws; one count of conspiracy to commit attacks against the United States and one count for providing material support to a terrorist organization by joining al Qa'ida.
Hamdan's case was argued before the Supreme Court on a writ of habeas corpus. The Court in the case of Hamdan v. Rumsfeld ruled that the military commission invoked by the Bush administration was unconstitutional. Since there was no act of Congress to establish a formal military tribunal to try alleged terrorists detained by the United States, the government had to proceed according to the ordinary laws of the United States, the laws of war, and the Geneva Conventions. In response, Congress and the Bush administration enacted legislation to establish a military tribunal and re-codified the Uniform Code of Military Justice (UCMJ) to detail violations of the laws of war as they pertain to alleged terrorists. In several cases, the Supreme Court did not deem conspiracy and material support as violations of the laws of war. The new legislation, however, has amended the UCMJ, inter alia, to include those charges as war crimes.
A package of habeas petitions (Boumediene v. Bush), challenging the new tribunal system was refused by the Supreme Court earlier this April. The Court ruled that the plaintiff's had not exhausted all appropriate measures before seeking review by the high court. Among the contentious issues before the Court was the suspension of the rights of habeas corpus, or the right to argue ones detention. This right was revoked for alleged terrorists in US custody in part due to the Military Commissions Act of 2006, itself a response to the Courts rulings regarding alleged terrorist in US custody.
Hamdan's lawyers are arguing that the military tribunal system enacted after his case is an example of ex post facto law; defining the crime after it was committed. It is not conventional to recognize such practice in international law. Hamdan's lawyers also argue that conspiracy and military support should not be considered war crimes.
On March 26, the Pentagon charged an Australian, David M. Hicks, for war crimes. Hicks pled guilty and was sentenced to 9 months for providing material support to a terrorist organization. On April 25, Omar Khadr, a 20 year old Canadian citizen, was charged with murder, attempted murder, conspiracy, providing material support to a terrorist organization, and for spying on American forces.
Hamdan is the third alleged terrorist suspect to be formally charged by the Pentagon. He is expected to be arraigned on June 4.
I've reported extensively on this in the "US cases against suspected terrorists" tab.