The first US military commission has issued is verdict in the trial of Salim Hamdam, Osama bin Laden’s driver and bodyguard. The commission jury convicted him on one of two counts — providing “material support” for terrorism. He was acquitted of the conspiracy count.
Neither of these charges are traditional crimes of war, like perfidy, murder, or mutilation. They are crimes that exist in US federal civilian law that were created as “war crimes” in the Military Commissions Act of 2006. It is the creation of new “war crimes” along with the procedural advantages to the prosecution that has made these commission so controversial. In Hamdam’s case, none of the charges were unique to war. The irony is that if he had been tried in a civilian court and if all the underlying facts were true, Hamdam would probably have been convicted of conspiracy as well.
The conspiracy acquittal is probably due to the judge’s June ruling that only a narrowly construed, agreement-based crime of conspiracy could be charged in the commissions. Congress made a conspiracy conviction possible only if the person charged committed an overt act of conspiracy; an overt act by any of the conspirators was insufficient.* Because of this decision, the government had to prove that Hamdam plotted with al Qaeda members to commit a specific act of terrorism and committed and overt act to further it, not that he had simply joined al Qaeda. This is unlike the “enterprise theory” of conspiracy used in US RICO legislation, which makes joining a criminal enterprise that engages in illegal conduct the equivalent an agreement to conspire. Had Hamdam been charged with conspiracy to commit terrrorism in a US court, his mere allegiance to al Qaeda and his driving for bin Laden would have been sufficient to convict him.
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*US conspiracy law is not intuitive. The “overt act” need not be illegal. Let’s say Dick and Jane discuss robbing a bank. At this point, there is no crime. But if Jane purchases a hand-gun legally, she has committed an overt act in furtherance of the conspiracy (the gun could be use to rob the bank). Since an overt act by any of the conspirators makes the conspiracy a crime, now Dick may be prosecuted along with Jane, even though did has made no overt act.
