BY CAROL ROSENBERG

Legal scholars generally consider an appeals court decision to go with ``en banc'' review to signal a case's importance.

A military jury at Guantánamo convicted ex-driver Salim Hamdan, now 40, of providing material support for terrorism and acquitted him of conspiracy in August 2008. Prosecutors were stunned, however, when that same jury rejected their call for a 30-year sentence and ordered him to serve just 5 ½ more months.

Hamdan went home to his native Yemen later that year. But Hamdan's military and volunteer civilian defense attorneys appealed. They argue that material support for terrorism and conspiracy were not war crimes at the time of the Sept. 11, 2001 attacks -- nor when U.S. troops captured Hamdan two months later in Afghanistan.

A three-judge panel heard both sides of the case in January, in Washington D.C. All the briefs had already been filed, and attorneys were anticipating a decision.

Now, five judges on the appeals court -- Navy Capts. Daniel E. O'Toole and Eric E. Geiser, Air Force Cols. Cheryl H. Thompson and Barbara Brand and Army Col. David Conn -- announced the ``en banc'' or full court review in a single page order issued to attorneys hours before the start of the long Labor Day weekend.

The Hamdan case has long been larger than the $200-a-month driver with a fourth-grade education who went before the Pentagon's military commissions at the remote U.S. Navy base in southeast Cuba.

In 2006, the U.S. Supreme Court sided with Hamdan and his lawyers, and found the Bush administration's scheme for trying suspected terrorists before military commission unconstitutional and sent the White House to Congress for permission to hold the trials.

The appeals panel that once number nine judges, two of them civilian appointees of the Bush administration, has now dwindled to five senior U.S. military officers.

The civilians resigned when President Barack Obama took office and a series of colonels and captains on the court have retired.

Friday's announcement came in the same week as the retirement of Geiser, who had initially been assigned to the Hamdan case. He heard the oral arguments in January and was expected to join in a ruling before leaving service.

A sixth member of the court, Navy Capt. Eric Price, recused himself from the case.

``No additional briefs or oral argument are ordered at this time,'' said a notice by Mark Harvey, deputy clerk of the court.

Still, defense lawyers were ``discussing internally whether we would like the opportunity to submit additional briefs or ask for more oral arguments,'' said Hamdan defense attorney Joseph M. McMillan, whose Seattle based Perkins Coie law office helped defend the case pro bono.

If so, they'd file a motion with the full court, McMillan said.

Source: Miamo Herald