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

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

Ninth Circuit analyzes district court’s application of the Alien Tort Statute against a foreign corporation for crimes committed abroad

Ninth Circuit analyzes district court’s application of the Alien Tort Statute against a foreign corporation for crimes committed abroad

The Ninth Circuit reviewed a case arising out of the operations of Rio Tinto mining groups in Papua New Guinea and the uprising that occurred against Rio Tinto in the late 1980’s that resulted in the use of military force and many deaths. The Plaintiffs were charged under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, for crimes against humanity, genocide, racial discrimination, and war crimes.

This case was brought before this Court twice. The Court previously held that exhaustion of the Plaintiffs’ claims for crimes against humanity, war crimes, and racial discrimination was necessary and remanded. On remand, the district court held that it would be inappropriate to impose a prudential exhaustion requirement on the Plaintiffs’ claims for crimes against humanity, war crimes, and racial discrimination, finding that the claims required exhaustion. The district court also dismissed all claims of genocide, war crimes, racial discrimination, and crimes against humanity. Plaintiffs appealed.

The U.S. Court of Appeals for the Ninth Circuit affirms in part, and reverses and remands in part. The Court holds that only the Plaintiffs’ claims of genocide and war crimes fall within the jurisdiction of the ATS, and crimes against humanity and racial discrimination do not.

The ATS “was enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations . . . based on the present‑day law of nations . . . rest[ing] on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th‑century paradigms we have recognized [violation of safe conducts, infringement of the rights of ambassadors, and piracy]. [Sosa v. Alvarez‑Machain, 542 U.S. 692, 724‑25 (2004)].” [Slip op. 7]

“Thus, in discussing the definite nature of an international norm that gives rise to a cause of action in an ATS suit against a private actor, the Supreme Court also noted that a related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” [Slip op. 7]

Rio Tinto attempted to argue that due to its status as a corporation, it could not be held subject to the ATS. However, following the precedent of the Supreme Court in Sosa v. Alvarez‑Machain, the Court determines that Rio Tinto could be sued under the ATS. “The ATS contains no such language and has no such legislative history to suggest that corporate liability was excluded and that only liability of natural persons was intended.” [Slip op. 14]

The Court first looks to the charge of genocide under the ATS. “Claims of genocide fall within the limited category of claims constituting a violation of internationally accepted norms for ATS jurisdiction. Sosa, 542 U.S. at 729. They are not barred by the act of state doctrine because violations of jus cogens norms are not sovereign acts.” [Slip op. 35]

Further, the Court holds that the jus cogens prohibition of genocide extends to corporations. “Given the universal nature of the prohibition, if an actor is capable of committing genocide, that actor can necessarily be held liable for violating the jus cogens prohibition on genocide. Indeed, the implication that an actor may avoid liability merely by incorporating is inconsistent with the universal and absolute nature of the prohibition against genocide.” [Slip op. 36] “Given that an amorphous group, a state, and a private individual may all violate the jus cogens norm prohibiting genocide, corporations likewise can commit genocide under international law because the prohibition is universal.” [Slip op. 37]

Next, the Court looks to the complaints allegations of war crimes in the form of murder against the civilian population of Papua New Guinea. The Court cites a district court case in Virginia, In re Xe Servs. Alien Tort Litig., 665 F. Supp. 2d 569 (E.D. Va. 2009), that held that war crimes could give rise to a cause of action under the ATS.

“Claims for violations of the international norm proscribing war crimes are cognizable under the ATS. By ratifying the Geneva Conventions, Congress has adopted a precise, universally accepted definition of war crimes. Moreover, through enactment of a separate federal statute, Congress has incorporated this precise definition into the federal criminal law. 18 U.S.C. § 2441. Thus, Congress has clearly defined the law of nations to include a binding prohibition on the commission of war crimes. Given this, and given Sosa’s teachings, it follows that an allegation of a war crime states a cause of action under the ATS.” Id.

International law also recognizes that corporations could be held liable for war crimes. “Because parties to a conflict not of an international character by definition must include at least one non‑state actor, entity, or group, Common Article III cannot reasonably be interpreted to be limited to states.” [Slip op. 45]

Third, the Court looks to crimes against humanity and racial discrimination, finding that these charges do not fall within the jurisdiction of the ATS. “Since none of the statutes explicitly include a blockade in their definition of extermination, Plaintiffs’ claim for crimes against humanity can come within the statutes only if the blockade constitutes other inhumane acts.”

“To meet the Sosa test, however, the blockade must be a violation of a recognized specific norm. The statutes do not create such a norm. There is no source of recognized international law that yet identifies a food and medical blockade as another inhumane act or otherwise qualifies it as a crime against humanity. In the absence of any such source, a food and medical blockade does not violate a specific internationally recognized norm within the meaning of Sosa.” [Slip op. 51] Therefore, the Court holds that the crimes against humanity did not fall under the purview of the ATS.

As for racial discrimination, the Court finds that the international norm prohibiting systematic racial discrimination is not sufficiently specific and obligatory to give rise to a cause of action under the ATS. The treaty itself provides a definition of racial discrimination but does not provide any such definition of systematic racial discrimination, nor even include the word “systematic.”

“It is important to recognize that the claim of racial discrimination as set forth in Count IV of the complaint is for a violation of the Racial Discrimination Convention. It is not a claim of apartheid as defined in the relevant international statutes. . . . We assume, without deciding, that a claim akin to apartheid would be cognizable under the ATS, but the complaint in this case does not allege such a claim.” [Slip op. 54]

Citation: Sarei v. Rio Tinto PLC, No. 02‑56256 (9th Cir. 2011).

 



**** 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

Eighth Circuit rules in criminal proceeding that Doctrine of Specialty and U.S.‑Mexico Extradition Treaty do not bar consideration of prior criminal history at Federal Court sentencing

Eighth Circuit rules in criminal proceeding that Doctrine of Specialty and U.S.‑Mexico Extradition Treaty do not bar consideration of prior criminal history at Federal Court sentencing

Dino Lomeli, a Mexican citizen (Defendant) ran an auto repair shop in Corpus Christi, Texas. There, he loaded cars with marijuana for distribution in Iowa. The U.S. authorities charged Defendant with many crimes, including murder, but he fled to Mexico before they could arrest him. Mexico extradited Defendant back to the U.S. in 2004. He pled guilty to murder in a separate Texas state court proceeding and an Iowa federal court convicted him of drug‑related offenses.

At the federal sentencing proceeding, Defendant argued that the court should not consider his history of criminal activities in the U.S. because it would violate the treaty under which Mexico extradited him.

In disagreeing, the district court stated that if “the computation of the criminal history under the advisory guidelines is found to violate the Extradition Treaty between the United States of America and the United Mexican States (May 4, 1978, 31 U.S.T. 5059) (the Treaty), the Court would still impose the very same sentence after considering the statutory factors at 18 U.S.C. 3553(a), and for the same reasons that I have previously stated: Drug quantity, criminal history, his leadership role ...”

Defendant filed an appeal claiming that the doctrine of Specialty in the Treaty prohibits an American court from considering his prior criminal history in the sentencing. The U.S. Court of Appeals for the Eighth Circuit, however, affirms the conviction and sentence.

The Treaty provides in Article 17 that “[a] person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting Party for an offense other than that for which extradition has been granted nor be extradited by that Party to a third State unless” certain exceptions apply.

“Article 17 is an explicit recitation of a general rule of extradition known as the Doctrine of Specialty. ... In general, the doctrine of specialty provides that ‘a defendant may be tried only for the offense for which he was delivered up by the asylum country.’ ... The doctrine dates back to the mid‑1800s, but was first adopted by the Supreme Court in 1886. ... [...]”

“The doctrine is now commonly included in many U.S. extradition treaties. ... It ‘is based on principles of international comity and is designed to guarantee the surrendering nation that the extradited individual will not be subject to indiscriminate prosecution by the receiving government.’ ...” [500‑501]

Defendant claims that considering his criminal history violates the Treaty as well as the doctrine of specialty. In his appellate brief, Defendant also quotes portions of his extradition paperwork filed by the Mexican government: “Section 10, Subparagraph II of the [Mexican] International Extradition Law demands the requesting country’s commitments that crimes committed prior to the extradition, omitted in the complaint as well as crimes not connected with the one specified in such complaint, shall not be subject to the process, not even as aggravating circumstances, unless the Defendant consents freely to be judged for such. ... This commitment is set forth in Section 17 of the Extradition Treaty between the United States of Mexico and the United States of America. ...”

The Court disagrees. First, “Defendant’s arguments run contrary to clearly established law in this circuit and others. We have previously held that the doctrine of specialty was not violated when a sentencing court took into account uncharged conduct when increasing a defendant’s parole guideline. ... [W]e rejected the argument ‘that the rule of specialty ... was intended to preclude the receiving government from taking any pre‑extradition conduct into account when making parole decisions.’ ... Instead, we held that ‘the doctrine is generally understood to prohibit indiscriminate prosecution of extradited individuals rather than to prohibit the receiving state’s consideration of pre‑extradition offenses while prosecuting the individual for crimes for which extradition was granted.’ ...”

“[T]he doctrine of specialty does not operate to bar consideration of all pre‑extradition conduct when determining a defendant’s punishment for the extradited offense. These holdings are in line with those of our sister circuits that have allowed nonextradited conduct to affect a defendant’s sentence. ...” [501‑502]

Furthermore, the Supreme Court has held that the “use of evidence of related criminal conduct to enhance a defendant’s sentence for a separate crime within the authorized statutory limits does not constitute punishment. Witte v. United States, 515 U.S. 389, 399... (1995).”

Finally, the Court expresses “some doubt whether Mexico intended the doctrine of specialty to shield Defendant in the manner he asserts. Although Defendant’s extradition resolution purports to prohibit the United States from using Defendant’s pre‑extradition conduct ‘even as aggravating circumstances,’ the resolution grounds this ‘commitment’ in Article 17 of the Treaty. As explained above, Article 17 does not prohibit the district court’s consideration of Defendant’s criminal history when sentencing him for the extradited offenses, and we fail to see how Defendant’s extradition resolution changes that analysis.”

“In sum, we reject Defendant’s argument that the doctrine of specialty prohibited the district court from correctly calculating Defendant’s criminal history under the Guidelines and from using that calculation to determine his advisory Guidelines sentencing range. To hold otherwise would ‘permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state.’... The plain language of the Treaty prohibits the United States from punishing Defendant for nonextradited conduct. We hold that the district court’s consideration of Defendant’s [prior] criminal history did not constitute punishment for nonextradited conduct, therefore the treaty was not violated.” [502‑503]

Citation: United States v. Lomeli, 596 F.3d 496 (8th Cir. 2010).

 


**** 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