WASHINGTON — Supreme Court nominee Brett Kavanaugh on Wednesday pointed to a 2012 decision in which he ruled for Osama bin Laden’s Yemeni driver as evidence of his independence as judge.
Asked by Judiciary Chairman Charles Grassley to discuss what judicial independence means to him, Kavanaugh pointed to his opinion in a case involving Salim Ahmed Hamdan, who drove bin Laden in Afghanistan from 1996 to 2001. Hamdan challenged both his detention at the U.S. military prison in Guantánamo Bay, Cuba, and subsequently his conviction by a U.S. military commission there on a charge of providing military support for terrorism.
In October 2012 the U.S. Court of Appeals for the District of Columbia Circuit ruled 3-0 that providing material support for terrorism was not an international war crime at the time Hamdan worked for bin Laden, before the creation of the post-9/11 war court.
“Indeed the Executive Branch acknowledges that the international law of war did not — and still does not — identify material support for terrorism as a war crime,” Kavanaugh wrote at the time.
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Kavanaugh told senators Wednesday that “you’ll never have a nominee who’s ruled for a more unpopular defendant.” Kavanaugh also said that judges don’t make decisions based on who people are, but “whether they have the law on their side.”
Hamdan, whom a military jury sentenced to serve 66 months as a war criminal, was released from Guantánamo and repatriated to his native Yemen nearly four years before Kavanaugh and other appeals court judges vacated his conviction.