The most common war crimes charge that the U.S. military has made against terrorism suspects at Guantanamo Bay appeared to be in some doubt Thursday in a federal appeals court — if the first case testing it does not go away procedurally.   The D.C. Circuit Court, in an hour-long hearing before a standing-room-only courtroom audience, showed clear signs of skepticism about the military’s use of the charge of “material support for terrorism,” at least as it would apply to cases before Congress created a new system of military commissions in 2006.  That, of course, would be most if not all of those who currently face commission trials.

At the same time, however, the specific case before the three-judge panel — Hamdan v. U.S. (Circuit docket 11-1257) — has hanging over it the possibility that it might be declared moot, because the convicted Yemeni national involved — Salim Ahmed Hamdan — has finished his war crimes sentence and has been released, to live in his home country.   Indeed, at the start of Thursday’s hearing, the panel ordered the two sides to file new legal briefs over the next 60 days on whether Hamdan’s case remains a live one legally speaking.  If it is no longer a live controversy, no federal court would have jurisdiction to decide it.

If the panel does move ahead and decide Hamdan’s challenge to his conviction on the “material support” charge, the ruling could be of major significance for the often-troubled military commission system at Guantanamo.  Two out of every three cases in which charges have been filed there have included this specific crime.  Under international law, specifically the branch called “the law of war,” that charge is not recognized as a war crime.  Hamdan’s lawyers contend that, therefore, the crime could not be charged under the Military Commissions Act of 2006, since that creates “law of war” trial commissions.

The Justice Department, however, defends the use of that charge on the premise that Congress had the authority to create that crime based not on international law but on something it calls “the domestic common law of war,” a concept that it traces at least back to the Civil War.

At Thursday’s hearing, Circuit Judge Brett M. Kavanaugh, who was the dominant questioner, was the most skeptical among the three judges about that argument.  While he suggested that Congress might well have the authority to create that crime “going forward” — that is, for cases that arose after 2006 — he said it was “a whole different question” whether a federal court should allow the charge to be leveled prior to that date.

Another member of the panel, Chief Judge David B. Sentelle, was somewhat less skeptical than Judge Kavanaugh, but did seem to support his colleague’s suggestion that, if Congress were to “take leadership” in recognizing a material support crime, it might have to be for future cases only.

Senior Circuit Judge Douglas H. Ginsburg asked few questions, but he was the only member of the panel who showed any real interest in whether the Hamdan case was moot.   That depends upon whether Hamdan, though now free and living in his homeland, could suffer any “collateral consequences” stemming from his conviction, since a finding of such consequences would keep his challenge alive. Justice Department lawyer John F. De Pue conceded on Thursday, as he did in the government’s merits brief, that the government does not challenge Hamdan’s claim that he could suffer consequences, especially if he were to be captured again should he return to armed terrorist activity.

After Judge Ginsburg pressed the mootness issue, Judge Sentelle commented that his own research did not turn up any prior ruling in which a court found no collateral consequences, when the case involved the first direct appeal from a conviction — the situation in Hamdan’s case.

Hamdan’s lawyer, Joseph M. McMillan, got a mostly friendly reception from the Circuit panel, and especially from Judge Kavanaugh.   Even so, if it should turn out that Hamdan wins only Kavanaugh’s vote against the material support charge, and loses Judge Sentelle on that point and loses Judge Ginsburg on mootness, the legal result would be that Hamdan would lose, because such a divided result would simply mean that the Circuit Court did not have the votes to overturn a ruling against Hamdan, on all points, by the U.S. Court of Military Commission Review in a decision last June.

While Hamdan’s challenge to his conviction is based in part on an array of constitutional provisions, including his argument that it was unconstitutional discrimination for Congress to confine military commission trials only to non-citizens, none of the constitutional arguments were discussed during the Thursday hearing, which ran 20 minutes longer than scheduled.   Instead, the dominant issue throughout was the question of whether Hamdan was properly charged with the material support crime.

His attorney, McMillan, argued that the government was trying — in pressing that charge based solely on “domestic common law” — to do what past governments have often tried to do, to expand the powers of military tribunals, only to be resisted repeatedly by the regular courts.  McMillan contended that the Justice Department justification for this charge now was the pursuit of “a radical and unsound approach” that would mean “a troubling encroachment” on the power of civilian courts.

Relying upon what he said were a string of Supreme Court precedents, including as recent as 2004, Hamdan’s attorney said that the Justices have made clear that war crimes must be based on the norms of international law, not domestic U.S. law.

Government lawyer De Pue countered that Supreme Court precedents should be made to make clear that international law is not the sole source of the kinds of war crimes that can be prosecuted under U.S. law, including looking to domestic common law.   But, he added, even if a crime declared by Congress does not happen to be recognized as a crime under international law, that does not bar Congress from codifying that crime under domestic law.   He said a crime that is equivalent to the material support charge against Hamdan has a history that goes back to the eighteenth century.

Since the Circuit panel has called for added briefing on the mootness question, and that schedule runs for the next 60 days, it is unclear when the panel will issue its decision.  There is no set timetable for it.

(UPDATE: A reader points out that, even if Judge Ginsburg were to conclude, alone, that the case is moot, it would be possible for him to file a dissent on that point but join with one of the other judges to make a majority on a ruling on the merits.  It has been done before in the D.C. Circuit, on a similar procedural point, by Judge Sentelle, the reader notes.)

 

 

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Terrorism support charge in doubt?, SCOTUSblog (May. 3, 2012, 4:11 PM), http://www.scotusblog.com/2012/05/terrorism-support-charge-in-doubt/