While lawyers in the military commission of 9/11 Mastermind Khalid Sheikh Mohammed here argued about what kind of evidence could be openly discussed in court, an appeals court in Washington, DC, handed down a decision in another case using reasoning that could undermine the charges against KSM and his co-defendants.
The US Court of Appeals for the District of Columbia Circuit ruled Tuesday that “material support of terrorism,” was not considered a war crime in 2001, throwing out the conviction of Osama Bin Laden’s driver, Salim Hamdan.
Hamdan had been convicted under the Bush-era military commissions in 2008. The ruling is likely to have a huge impact: a number of detainees here at Guantanamo have been charged with “material support of terrorism,” among them Abd al Rahim al Nashiri, the mastermind of the USS Cole bombing in 2000.
Khalid Sheikh Mohammed and his co-defendants were not charged with material support for terrorism, but the legal thinking that threw out the Hamdan decision could have profound implications for their case.
In the Hamdan decision, the court essentially said, “you can’t charge someone with an offense that was not an offense at the time committed,” according to Military law expert Gary Solis. He notes that this sort of ex post facto charging had been done in the Nuremberg trials, but “it’s always been a theory of criminal law, not a law itself.”
Solis is certain the Hamdan ruling will lead to legal scrutiny of charges brought under the 2009 Military Commissions act—the new, reformed Military Commissions developed under President Obama.
And that could mean more complications for the already complicated Khalid Sheikh Mohammed.
In addition to other charges, Khalid Sheikh Mohammed and his co-defendants face 2,976 counts of “murder in violation of the law of war” for the 9/11 attacks. It sounds reasonable for an attack that brazenly targeted civilians, but the problem is that, like “material support of terrorism,” “murder in violation of the law of war” wasn’t considered a war crime before.
It’s unclear why prosecutors chose this novel charge—others have been charged with “crimes against humanity,” for killing far fewer civilians than died on 9/11. But in the context of the military commissions or the law of war, Solis thinks “murder in violation of the law of war” is a “bogus” charge.
All the military commissions answer to the US Court of Appeals for the District of Columbia Circuit, and based on their decision Tuesday, they may share Solis’ skepticism that “murder in violation of the law of war,” is legitimate. So if Khalid Sheikh Mohammed is ultimately convicted—still a year or more away— it still may not be the end of the legal road for the 9/11 plotter.