It is not appellant's conduct in isolation that constitutes a law of war violation triable by military commission. Rather, it is his knowledge, intent, and conduct, in support of terrorism, and in the specific context of a conflict triggering application of U.S. treaty obligations per Common Article 3, which make it cognizable under the 2006 M.C.A. In enacting the 2006 M.C.A., Congress circumscribed the capacity of the military to unilaterally interpret the law of war and craft law of war offenses and punishments in connection with al Qaeda and terrorism offenses. The charges at bar are not the exercise of fiat or expediency by the executive branch; they are the product of closely prescribed statutes of limited application encompassing the peculiarities of the modern geopolitical environment.

In November 2008, Hamdan was released [JURIST report] to his native country Yemen to serve the last month of his prison sentence and is now living freely in Yemen. His release alleviated concerns that arose when government lawyers said he could be held indefinitely [JURIST report]. In October 2008, a US military judge denied [ruling, PDF; JURIST report] a request [motion, PDF] by prosecutors that he reconsider a decision that reduced Hamdan's sentence [JURIST report] from five-and-a-half years to six months because of credit for time already served. Hamdan was initially taken into custody in 2001, and in 2006 he successfully challenged President George W. Bush's military commission system when the Supreme Court ruled [opinion, PDF; JURIST report] that the commission system as initially construed violated US and international law. Congress subsequently passed the Military Commissions Act of 2006 [DOD materials], which established the current military commissions system.