U.S. Court of Appeals for the District of Columbia
Circuit reverses conviction of driver and bodyguard of Osama bin Laden because
(1) the Military Commissions Act does not retroactively punish new crimes, and
(2) “material support for terrorism” was not a pre‑existing war crime under 10
U.S.C. Section 821
The following case (again) raises important questions about
the scope of the Executive’s authority to prosecute war crimes.
Salim Ahmed Hamdan, originally from Yemen, was Osama bin
Laden’s driver and bodyguard. He was captured in Afghanistan in November 2001
and transferred to Guantanamo Bay, Cuba. A military commission convicted him of
“material support for terrorism” [see Military Commissions Act, 10 U.S.C.
Section 950t(25)]. However, Hamdan’s conviction was based on his actions during
the years 1996‑2001, which preceded the enactment of the Military Commissions
Act. At the time that Hamdan served Osama bin Laden, a military commission
could pursue only violations of the “law of war” (10 U.S.C. Section 821).
In 2006, the matter came before the U.S. Supreme Court,
which held that the military commission rules then in place contravened the
statutory limits because they did not fully comply with statutory restrictions
in 10 U.S.C. Section 836. See Hamdan v. Rumsfeld, 548 U.S. 557, 613‑35 (2006).
The Supreme Court, however, did not decide whether conspiracy was a cognizable
charge in a military commission under the “law of war” for purposes of 10
U.S.C. Section 821. After Hamdan, Congress enacted a new military commissions
statute. See Military Commissions Act of 2006, Pub.L. No. 109‑366, 120 Stat.
2600. [NOTE: Congress enacted a new Military Commissions Act in 2009, Pub.L.
No. 111‑84, 123 Stat. 2574, but the changes therein are not relevant to the
present case.] In there, Congress expanded military commissions beyond
prosecuting violations of the generic “law of war.” In particular, for the
phrase “law of war,” Congress listed specific war crimes that could be charged
by military commission, including conspiracy and material support for terrorism.
Hamdan was charged anew after passage of the 2006 Military
Commissions Act, and convicted of five instances of material support for
terrorism. In August 2008, Hamdan was sentenced to 66 months’ imprisonment and
released in late 2008. Hamdan appealed his conviction.
The U.S. Court of Appeals for the District of Columbia
Circuit now reverses Hamdan’s conviction by the Court of Military Commission
Review, and directs that Hamdan’s conviction for material support for terrorism
be vacated. The reasons include: (1) the Military Commissions Act does not
retroactively punish new crimes, and (2) “material support for terrorism” was
not a pre‑existing war crime under 10 U.S.C. Section 821.
As a preliminary matter, the Court notes that this is a
direct appeal of a conviction, thus it is not mooted by Hamdan’s release. The
Court then addresses Hamdan’s arguments.
“Hamdan argues that Congress lacked authority under Article
I of the Constitution—namely, the Define and Punish Clause—to define material
support for terrorism as a war crime subject to trial by a U.S. military
commission. Hamdan maintains that Congress’s authority under the Define and
Punish Clause is limited to proscribing offenses that are already illegal under
international law. And Hamdan contends that material support for terrorism is
not a recognized international‑law war crime."
“Even assuming arguendo that Congress had authority under
its various Article I war powers to establish material support for terrorism as
a war crime in the Military Commissions Act of 2006, we conclude that the Act
did not authorize retroactive prosecution for conduct that was committed before
the Act’s enactment and was not prohibited by U.S. law at the time the conduct
occurred. Here, Hamdan’s conduct occurred from 1996 to 2001—before enactment of
the Military Commissions Act. And as we will explain, the federal statute in
effect at the time of Hamdan’s conduct—10 U.S.C. § 821—did not authorize
prosecution for material support for terrorism. [Slip op. 14‑16]
“To avoid the prospect of an Ex Post Facto Clause violation
here, we interpret the Military Commissions Act of 2006 so that it does not
authorize retroactive prosecution for conduct committed before enactment of
that Act unless the conduct was already prohibited under existing U.S. law as a
war crime triable by military commission. In this case, therefore, Hamdan’s
conviction stands or falls on whether his conduct was prohibited by the pre‑existing
statute, 10 U.S.C. § 821, at the time he committed the conduct.” [Slip op. 18]
“Analysis of this issue begins by determining what body of
law is encompassed by the term ‘law of war’ in 10 U.S.C. § 821. The Supreme
Court’s precedents tell us: The ‘law of war’ referenced in 10 U.S.C. § 821 is
the international law of war. See Hamdan, 548 U.S. at 603 (plurality) (act is
law of war offense when ‘universal agreement and practice both in this country
and internationally’ recognize it as such) (internal quotation marks omitted) ¼” [Slip op. 19‑20]
“We turn, then, to the question whether material support for
terrorism is an international‑law war crime.”
“It is true that international law establishes at least some
forms of terrorism, including the intentional targeting of civilian
populations, as war crimes. See, e.g., Rome Statute of the International
Criminal Court art. 8(2)(b), July 17, 1998, 2187 U.N.T.S. 90; Geneva Convention
Relative to the Protection of Civilian Persons in Time of War (Geneva IV), art.
33, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; COMMISSION OF RESPONSIBILITIES,
CONFERENCE OF PARIS 1919, VIOLATION OF THE LAWS AND CUSTOMS OF WAR 17
(Clarendon Press 1919) (the Allied Nations condemned Germany for ‘the execution
of a system of terrorism’ after World War I).”
“But the issue here is whether material support for
terrorism is an international‑law war crime. The answer is no. International
law leaves it to individual nations to proscribe material support for terrorism
under their domestic laws if they so choose. There is no international‑law
proscription of material support for terrorism.”
“To begin with, there are no relevant international treaties
that make material support for terrorism a recognized international‑law war
crime. Neither the Hague Convention nor the Geneva Conventions—the sources that
are ‘the major treaties on the law of war’—acknowledge material support for
terrorism as a war crime. See Hamdan, 548 U.S. at 604 (plurality); Geneva
Convention Relative to the Protection of Civilian Persons in Time of War
(Geneva IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Hague Convention
(IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18,
1907, 36 Stat. 2277.”
“Nor does customary international law otherwise make
material support for terrorism a war crime. Customary international law is a
kind of common law; it is the body of international legal principles said to
reflect the consistent and settled practice of nations. See RESTATEMENT (THIRD)
OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987) (‘Customary
international law results from a general and consistent practice of states
followed by them from a sense of legal obligation’). It is often difficult to
determine what constitutes customary international law, who defines customary
international law, and how firmly established a norm has to be to qualify as a
customary international law norm. Cf. Sosa v. Alvarez‑Machain, 542 U.S. 692
(2004).”
“But here, the content of customary international law is
quite evident. Material support for terrorism was not a recognized violation of
the international law of war as of 2001 (or even today, for that matter). As we
have noted, the Geneva Conventions and the Hague Convention do not prohibit
material support for terrorism. The 1998 Rome Statute of the International
Criminal Court, which catalogues an extensive list of international war crimes,
makes no mention of material support for terrorism. See Rome Statute of the
International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90. Nor does the
Statute of the International Tribunal for the Former Yugoslavia, the Statute of
the International Tribunal for Rwanda, or the Statute of the Special Court for
Sierra Leone. See Statute of the International Tribunal for the Former
Yugoslavia, adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in
32 I.L.M. 1159, 1192; Statute of the International Tribunal for Rwanda, adopted
by S.C. Res. 955, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, 1602
(includes terrorism itself as a crime); Statute of the Special Court for Sierra
Leone art. 3(d), Jan. 16, 2002, 2178 U.N.T.S. 138 (same). Nor have any
international tribunals exercising common‑law‑type power determined that
material support for terrorism is an international‑law war crime.” [¼]
“In short, neither the major conventions on the law of war
nor prominent modern international tribunals nor leading international‑law
experts have identified material support for terrorism as a war crime. Perhaps
most telling, before this case, no person has ever been tried by an
international‑law war crimes tribunal for material support for terrorism.” [¼]
“To be sure, there is a strong argument that aiding and
abetting a recognized international‑law war crime such as terrorism is itself
an international‑law war crime. And there are other similar war crimes. But
Hamdan was not charged with aiding and abetting terrorism or some other similar
war crime. He was charged with material support for terrorism.” [¼]
“In short, material support for terrorism was not an
international‑law war crime under 10 U.S.C. § 821 at the time Hamdan engaged in
the relevant conduct.”
“Because we read the Military Commissions Act not to
sanction retroactive punishment for new crimes, and because material support
for terrorism was not a pre‑existing war crime under 10 U.S.C. § 821, Hamdan’s
conviction for material support for terrorism cannot stand. We reverse the
decision of the Court of Military Commission Review and direct that Hamdan’s
conviction for material support for terrorism be vacated.” [Slip op. 21‑28]
Citation: Hamdan
v. United States, No. 11‑1257 (D.C. Cir. December 16, 2012).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
