Posted on October 16, 2012 at 11:01 am by Lyle Denniston
(Final update, 1:16 p.m.)
The D.C. Circuit Court on Tuesday threw out one of the earliest post-9/11 military convictions of a terrorism suspect, putting in doubt the use of the commission system to try war crimes charges for events that occurred years earlier. The ruling by a three-judge panel voided the conviction of Salim Ahmed Hamdan, a Yemeni national who no longer is held by the U.S. military. He completed his sentence, and was sent home, but the Circuit Court said his case still involved an active controversy.
Hamdan, who often has been described by the U.S. government as a driver for Osama bin Laden, was convicted of the war crime of “material support for terrorism.” The Circuit Court, however, said that was not a crime at the time of the events for which he was prosecuted under a 2006 law – the Military Commissions Act. The panel said it ruled that way in order to avoid a constitutional question of whether the Hamdan trial violated the Constitution’s ban on ex post facto prosecution.
It was not immediately clear how far the ruling would reach for coming or other past prosecutions by military commissions at Guantanamo Bay. The same charge that was leveled against Hamdan — material support — has been made against several other detainees there. In fact, the government has relied heavily upon that kind of charge, on the theory that it would be fairly easy to prove.
Ironically, Congress had passed that law after Hamdan had won an earlier Supreme Court ruling, nullifying President George W. Bush’s creation — by presidential order — of a system of military tribunals for war crimes cases. The charges against him, pursued under the 2006 act of Congress, were based on alleged activities in Afghanistan between 1996 and 2001, when he was captured there.
The Circuit Court, besides ruling that the 2006 law did not apply to Hamdan’s alleged conduct, found that his conviction also could not be upheld under an earlier and long-standing law that was in effect at the time. Under that law, military commissions were authorized to try violations of the “law of war.” But the Circuit Court noted that this refers to international law, which at the time — and still today — did not treat “material support for terrorism” as a law of war.
Obviously sensitive about the appearance of issuing such a ruling even as the country continues to carry on a “war on terrorism,” the Circuit Court took two steps to try to ease the discomfort for the government. First, it opened with a recitation about the challenges faced by a country at war, and, second, it included a footnote seeking to strictly limit the scope of its decision against Hamdan’s conviction.
In that note, the Circuit Court said Hamdan could be detained, if again captured for hostile actions, until “the end of U.S. hostilities against al Qaeda.” It also said that a military commission could try him on any conduct that did come under the earlier “law of war” statute, or under the 2006 law for any hostilities since 2006. Further, it said that he could be prosecuted in civilian court on “appropriate charges.” And, finally, it said, it was not questioning that Hamdan — as a fact, if not in law — had engaged in the conduct that led to the charge of material support. Indeed, the main opinion recited all of the government’s assertions about Hamdan’s activities as if they were established fact, rather than evidentiary claims, buttressing the notion that he was factually guilty.
Still, the decision was a major rebuff to the government’s war effort, especially since it was written by one of the most conservative among young federal judges, Circuit Judge Brett M. Kavanaugh, who is often mentioned as a potential nominee to the Supreme Court in a Republican administration. And it was joined by two other judges with strong conservative reputations, Chief Judge David B. Sentelle and Senior Circuit Judge Douglas H. Ginsburg (although the two other judges withheld support for some of the main opinion’s footnotes). That may help insulate the ruling from some of the sharp criticism that might be expected from conservative commentators and politicians.
After President Bush had set up an initial system of military tribunals, Hamdan was charged with one count of conspiracy, due to be tried before one of those commissions. That prosecution, however, was thwarted by the Supreme Court’s 2006 decision in Hamdan v. Rumsfeld. That led Congress to pass the Military Commissions Act. Hamdan was charged again, this time on the material support count along with a conspiracy count. He was found not guilty of conspiracy, but convicted of material support for terrorism. He was sentenced to sixty-six months in prison, but given credit for the lengthy time he had been held at Guantanamo. He was then sent home to Yemen, and was released there, in January 2009.
His lawyers continued to press his appeal, to the next higher court in the military commissions system — the Court of Military Commission Review. It upheld the conviction, and his lawyers then took the case to the D.C. Circuit, leading to Tuesday’s decision. Both sides agreed that the case was not moot, because Hamdan was pursuing a direct appeal from a criminal conviction. The Circuit Court ruled on its own that the case was not moot, although Judge Ginsburg, in a separate opinion, questioned whether it should have been since Hamdan is abroad and may never come within U.S. reach again — an assertion that Judge Kavanaugh did not concede.
The key to the ruling was its finding that the 2006 law could not be used to apply retroactively the charge of material support — that is, the charge could not be leveled for conduct that allegedly occurred before that act became law. The Court did not decide whether Congress does have the power to make material support a war crime subject to trial before a military commission. Judge Kavanaugh, in a footnote that neither of his colleagues supported, said that he would rule that Congress did have that authority — if the issue were actually before the court. Kavanaugh contended that, even though international law does not yet recognize that crime as a crime under the “law of war,” Congress can take a lead in the international community in establishing such a charge.
The three judges on the panel did agree that, whatever the future might hold, Congress does not have the power to create a new war crime and then make it retroactive. And the panel rejected an argument that, even though Congress was aware that doing so might run afoul of the Constitution’s ban on ex post facto imposition of criminal liability, Congress tried to take care of that problem by saying the 2006 law only codified already-existing war crimes. That was in error, the Circuit Court concluded. In order to avoid the ex post facto problem, the panel ruled, it would interpret the 2006 law as not reaching back before its enactment date to punish for material support to terrorism.
Separately, the panel then went on to rule that the older statute specifying “law of war” crimes did not make material support for terrorism a crime. “International law leaves it to individual states to proscribe material support for terrorism under their domestic law if they so choose. There is no international-law proscription of material support for terrorism.”
Senior Judge Ginsburg, in his separate opinion joining in the result, questioned the “mootness” doctrine on which his colleagues had relied, noting that Hamdan could still be barred from ever entering the U.S. personally, because of a separate provision that can apply to those who, in the past, engaged in terrorist activity.