Hamdan: Breakdown of the Convictions and Acquittals

Hamdan has been convicted of some charges, acquitted of others.  Here is the breakdown (note that the charge sheet is posted here).

 

Count 1: Conspiracy

 

Specification 1: conspiracy to commit a variety of offenses (attacks on civilians, etc.) – acquitted

 

Specification 2: conspiracy to commit murder in violation of the law of war by attacking US and coalition servicemen – acquitted (note that this specification was the subject of much news coverage yesterday, as it turned out that Judge Allred instructed the jury that the charge required proof that the conspiracy targeted "protected persons" (civilians or persons rendered hors de combat) )

 

Count 2: Material Support

 

Specification 1: Providing himself as personnel to al Qaeda with knowledge or intent that this support would "be used for an act of terrorism"  (a count analogous to 18 USC 2339A)– acquitted

 

Specification 2: Providing himself as personnel to al Qaeda, period (a count analogous to 18 USC 2339B, which unlike 2339A does not require any linkage to another offense) – CONVICTED

Specification 3: Providing al Qaeda with SA-7 surface-to-air missiles in November 2001, knowing they would be used for an act of terrorism (again along the lines of 2339A) – acquitted

 

Specification 4: Providing al Qaeda with SA-7 surface-to-air missiles in November 2001, period (again along the lines of 2339B) – acquitted

 

Specification 5: Providing support to al Qaeda through his service as a driver, knowing this would facilitate communications and planning for terrorist acts – CONVICTED

 

Specification 6: similar to Specification 5 – CONVICTED

 

Specification 7: Providing support to al Qaeda through service as a bodyguard, knowing this would facilitate communications and planning for terrorist acts – CONVICTED

 

Specification 8: similar to Specification 7 – CONVICTED

 

It seems to me that there was little doubt Hamdan would be convicted on the support charges relating to his service as a driver and bodyguard, and my understanding is that Judge Allred may have issued rulings relating to Specifications 3 and 4 that made it less likely that the jury would convict on those counts (I'm not sure of the details, however).  We also know from news accounts yesterday that Judge Allred instructed the jury that the second Specification on Conspiracy required proof that the conspiracy targeted civilians or other protected persons rather than soldiers, ensuring an acquittal on that particular issue.  And so the only real surprises here, arguably, are the acquittals on the first conspiracy specification and the first material support specification. 

 

Next we'll have the sentencing, but the real action from this point forward is in the appellate process as Hamdan challenges (i) the constitutionality of various procedural aspects of the trial and (ii) the substantive legality of the offenses charged.  Ultimately, we may see the Supreme Court confronted with the question of whether "material support" was a crime triable by military commission between 1996 and 2001 and, if not, whether this invalidates Hamdan's conviction.