The January 9, 2013 Washington Post featured an article “Al-Qaeda propagandist’s conviction must be overturned, Justice Department says” (found at: http:www.washington.post.com/world/national-security/al-qaeda-propagandists-conviction-must-be-overturned-justice-department-says/2013/01/0/2033f464-5aa1-11e2-9fa9-5fbdc9530eb9_story.html)
The US Constitution has two clauses (Article 1 §9 and 10) that prohibit ex post facto laws. Simply ex post facto laws are derived from the Latin “from a thing done afterward” meaning that an individual cannot be prosecuted for a crime that didn’t exist at the time of his act.(http://www.law.cornell.educ/wex/ex post facto)
According to the article the US Court of Appeals for the District of Columbia Circuit overturned the conviction of bin Laden’s driver (Salim Hamdan) because the charge (providing material support for terrorism) was not a crime at the time he committed the act. The ruling in this case set the precedent for the Appeals Court to overturn the conviction of Ali al Bahlul who according to the government was “a Yemeni propagandist for al-Qaeda who was convicted of material support, conspiracy to commit war crimes and solicitation to commit war crimes”
At the moment the law of cyber war and by extension, cyber influence is evolving. Hostile acts to the nation’s IT infrastructure or unauthorized use of an organization’s IT resources for hostile acts by nation states or non-state actors are not yet specifically defined as ‘war crimes’. They may be computer crimes as defined by state or federal law, but thus far the nature of cyber war crimes has not been codified.
The court’s strict enforcement of the prohibition on ex-post facto laws should be duly noted and appropriate steps taken in Congress to set up the firm legal foundation needed to prosecute the cyber war acts of the future.