David Kris: Our Only Military Commission Convictions May Be Illegal

I was interested in one particular detail in David Kris’ testimony before the Senate Armed Services Committee hearing on military commissions the other day. He said that we probably couldn’t charge and try people with "material support for terrorism" in military commissions.

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible.

I’ve always thought the "material support for terrorism" to be a fairly arbitrary crime. That’s particularly true given that Eric Holder, back in his high-priced Defense Attorney days, got powerful white corporate executives off with no charges after they knowingly supported right wing terrorist violence, but as Attorney General, Holder recently oversaw DOJ win 15 year penalties on Muslims who claimed to believe their donations had supported charity.

But Aussie Lawyer reminded me of something more important. 

Two of the only people (maybe the only people?) who have been convicted thus far in our kangaroo court Guantanamo military commission system are David Hicks and Salim Hamdan. The charge both were convicted on?

Material support for terrorism.

Of course, both have served their sentence and been freed, so I question whether either will challenge their conviction based on Kris’ statement. 

But the current Assistant Attorney General for National Security seems to be suggesting that the only two convictions the Bush White House got from his military commissions would not hold up under appeal.

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bmaz @CoxHelp Cox already nearly 2X what CenturyLink/Direct has offered me in price I stayed because of long time email address. Now thats bad
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bmaz @CoxHelp Just most of them, not all. Maybe you can convey this to someone who does actually have access? This is getting absurd.
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emptywheel RT @froomkin: Woohoo! No. of people holding security clearances dips below 3 million! http://t.co/9fEyyu8a5K http://t.co/njK5FzfsmO
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bmaz Maybe if @CoxComm @CoxArizona @CoxHelp would read their own stated "Postmaster" contact, they could respond meaningfully, but nooooooo.
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bmaz Still have received diddly squat other than pablum from @CoxComm @CoxArizona and/or @CoxHelp I guess there is always "Hope"
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bmaz @CoxHelp Erica, I will be waiting for an explanation to my actual email inquiry
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emptywheel @mattblaze Are you kidding?!? In the 'burbs are where they're making serious, unironic pork off the word.
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bmaz So the police in Baltimore cravenly murder people+are now belligerently refusing admission into Camden Yards? #MilitantAuthoritarianAmerica
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emptywheel RT @elizabeth_joh: Case just made for #SCOTUS cameras: $6000 for a place in line for tomorrow's #SSM arguments http://t.co/p9vbXIpzMz by @…
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bmaz @CoxHelp People who just emailed me yesterday+that I tried to reply to. This is BS. Check your vaunted "Postmaster" inbox and at least try.
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bmaz @CoxHelp What I am saying is that Cox is sending me messages that my email didn't go through to people it has ALWAYS gone throughout to.
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bmaz @william_pitts Great coverage. Still, insanely light speed goofy process that occurred today. To point of being shocking....at least I think
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