DC Appeals Court Throws Out Hamdan Conviction

Back in 2009, then Assistant Attorney General David Kris predicted that appellate courts might throw out material support military commission convictions because material support is not a law of war crime.

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.

Today, the DC District Court did just that, though making a slightly narrower ruling. In a ruling overturning Salim Hamdan’s conviction on material support, conservative judge Brett Kavanaugh notes that material support still is not a law of war crime, and did not become a crime covered by military commissions in the US until the 2006 Military Commissions Act.

First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

Because we read the Military Commissions Act not to retroactively punish 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 judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

Hamdan has already been released. Only one other detainee has been convicted on just material support, Ibrahim al-Qosi, who has been repatriated to Sudan and is in a reintegration program [oops–I forgot David Hicks, though he too has been released]. As Carol Rosenberg points out, three other Gitmo detainees were convicted of material support: Majid Khan, Noor Uthman Muhammed, and Ali al-Bahlul, but they were also convicted of other crimes. So assuming the Administration doesn’t appeal this, it probably doesn’t affect all that much.

Then again, the Administration could appeal this and have SCOTUS decide whether material support should be covered by military commissions more generally.

Update: I was wondering how this would affect al-Bahlul’s appeal. Steve Vladeck says it might affect it significantly.

And that’s where the next military commission case, al-Bahlul, comes in–one of the claims al-Bahlul raises in his appeal is that conspiracy was not recognized as a violation of the laws of war when the MCA was enacted, and so, as in Hamdan, the commission could not try him for that offense, either.


Judge Kavanaugh adopts Justice Stevens’s reasoning for the plurality in Hamdan I as the law of the D.C. Circuit in Hamdan II. As a result, an individual can only be tried in a military commission under the MCA for conduct that, prior to 2006, was clearly in violation of international law. Applying that standard, the Hamdan II majority easily brushes aside various Civil War-era examples, suggesting that, whatever their implications, they hardly meet such a requirement for a “firmly grounded” norm proscribing MST.

If this is the standard that the D.C. Circuit applies in al-Bahlul, then the government will have an uphill battle in convincing that panel that conspiracy satisfies it, especially given the Hamdan I plurality’s conclusion that it does not. And if conspiracy is knocked out, as well, that will probably preclude most of the non-9/11 cases going forward–or at least require the government to find more conventional charges.

26 replies
  1. emptywheel says:

    Incidentally, I’m also wondering if this will have an effect on Nashiri’s case. He’s got a good argument to make that he was charged for legal military action, which are also inappropriate in a military commission. While a totally different issue than Hamdan’s, it does suggest even very conservative judges are sympathetic to such issues.

  2. bmaz says:

    al-Qosi not the only other one based solely on material support; David Hicks’ guilty plea was to one count of that.

    Because of the pretty clear read that charging MST after 2006 is just hunky dory, this decision – as significant as it is – won’t affect that much as Hamdan, al-Qosi and Hicks are released. At least unless and until (as you and Steve point out) conspiracy is similarly treated, THEN we get some real action.

    Still though, the appearance of the hit to the legitimacy of the military commission process itself is pretty notable. As is the stain on how the US has charged, leveraged and, at root, detained without charges, so many at Gitmo.

    If I am a detainee lawyer, the ACLU and CCR etc, I have a HUGE grin on my face today, because the root legitimacy of the MC process is a bit more in question and amenable to substantive court intervention. Even by an ideologically to the right panel in the dreaded DC Circuit. That is a good thing.

    A parting jeer for Judge Ginsburg who searched for a way to moot the damn thing. Boo.

  3. bmaz says:

    @emptywheel: Right. I don’t know how much hard effect this ruling makes overall, but the ground change seems palpable.

    Then, again, I felt that way with Boumediene too….

  4. What Constitution? says:

    Every inch we can claw back away from a standard of “because they’re bahhd” as a basis for “trial” and conviction of a US detainee before a military tribunal is an inch to be celebrated. To the lawyers who have pursued this with such dedication, the thanks of a grateful nation (whether it recognizes it yet, or not).

  5. emptywheel says:

    @bmaz: Sure. But Boumediene was about Kennedy preserving judicial turf. This is about conservative judges at DC Appeals ruling on the merits.

  6. PeasantParty says:

    Marcy, thank you so much for this information.


    Will any of that “Law of War”, and “conspiracy” findings relate to the Manning case? Er, well in your opinion would it have any relation?

  7. PeasantParty says:

    @bmaz: Yes, I do remember that our views on that particular case do not meld. I do trust you to give me the truth on legalities and am very appreciative.

  8. bmaz says:

    @PeasantParty: The thing is, military commissions depend on their own province, rules etc – and extant statutory law and international law. But Manning is being tried in a UCMJ courts Martial forum under long established UCMJ specifications. There will be plenty of argument as to whether and how they apply to Manning, but they are not going to be subject to the ex post facto analysis of Hamdan.

  9. harpie says:

    I wonder if this would have made a difference for Omar Khadr.

    DOD Announces Sentence for Detainee Omar Khadr; 10/31/10

    The Department of Defense announced today that a military commission sentenced Omar Khadr to 40 years in confinement after he pleaded guilty to
    murder in violation of the law of war,
    attempted murder in violation of the law of war,
    providing material support for terrorism,
    and spying. […]

    David Frakt talks about the some of these charges here.

    Steve Vladek talks about some in the piece linked in the article.

    I don’t think “spying” is mentioned in either.

  10. harpie says:

    @harpie: Judge Kavanaugh mentions spying as one of the traditional war crimes charges:

    Moreover, Congress has long prohibited war crimes beyond those specified by international law. See 10 U.S.C. § 904 (aiding the enemy); id. § 906 (spying); cf. Quirin, 317 U.S.

  11. Jeff Kaye says:

    @harpie: All of the charges against Khadr were trumped up, especially the “murder in violation of the law of war” charge (and its “conspiracy” cousin). The Khadr “trial” was a show trial, pure and simple, with the result already decided beforehand. Khadr had very little choice, as did Hicks, if he was to get out of Guantanamo ever, and alive (no joke given the recent unexplained death of Latif, and the “suicides” of a number of others).

    Meanwhile, bmaz, does the Constitution not say “No Bill of Attainder or ex post facto Law shall be passed”? Was there ever really any question (among legists) that this aspect of the MCA was unconstitutional?

  12. harpie says:

    @Jeff Kaye: Yep. A most infuriating case. So, if this Hamdan decision had been written two years ago, they might not have been able to frame him? [Maybe that’s not the correct term, but that’s what it feels like happened to him.] Hicks was another travesty.

  13. Kevin Jon Heller says:


    Al-Nashiri is facing a range of charges, some of which are at least arguably real war crimes. The government’s problem in his case is that it is very difficult to argue that al-Nashiri’s actions took place during armed conflict (esp. the pre-2001 acts, such as the attack on the USS Cole), which is obviously a precondition for any “war crime” prosecution. A group of distinguished former JAGs recently filed an amicus brief in support of al-Nashiri on precisely that point.

  14. harpie says:

    @harpie: Just got finished reading this post and thread. powwow linked to a paper by David Glazier in which he says the following about Khadr’s spying charge:

    The final charge against Omar Khadr, spying, is uniquely flawed. First, the MCA’s definition of the offense errs in its treatment of the relevant international law. But even more fundamental than this linguistic difficulty is the fact that the government’s charge sheet provides prima facie documentation that Khadr cannot lawfully be prosecuted for spying upon the specific facts which the government alleges, suggesting that the prosecution is either ignorant, or contemptuous, of the law of war.
    One element that makes the offense of spying exceptional is that it is defined by the law of war, which authorizes punishment by victim nations as a means of self-defense, but it is not a war crime. Although subject to trial and potential execution by the victimized force, the spy does not personally violate international law, cannot be tried by any other party unlike an actual war criminal subject to potential universal jurisdiction, and a commander commits no legal violation by employing him.121

  15. thatvisionthing says:

    DC District Court: “First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.”

    Not a lawyer. If release doesn’t moot, then why does death have to moot Latif’s appeal to Supreme Court? I’m still back @36 in ew’s post, http://www.emptywheel.net/2012/09/11/janice-rogers-brown-and-our-failed-justice-system-killed-adnan-farhan-abd-al-latif/#comment-406376

    [Latif’s] case still judicially matters as you all have explained, just as Rosa Parks mattered to all of us and not just to herself, and the outcome of her case would still have mattered to us all even if she had died before her court process had played out.

  16. thatvisionthing says:

    @thatvisionthing: Release is release is release…

    O God–who governs creation with providence,
    Who is one, singular and self-subsisting,
    Who brings comfort and happy tidings,
    Whom we worship–
    Grant serenity to a heart that beats with oppression,
    And release this prisoner from the tight bonds of confinement.

  17. bmaz says:

    @thatvisionthing: Because Habeas is a right that inures to an individual regarding his liberty and Latif’s action was in the form of Habeas. That extinguished with his death. Hamdan, as even your quote (from DC Circuit, not District) indicates, was a direct appeal from a conviction and, of course, he is still alive.

  18. thatvisionthing says:

    @bmaz: Has anybody ever argued what I just did, that the law and the decision matter to us all even if the originator of the case is now dead? Play it as it lays? Someone must have argued the “release doesn’t moot” question for the first time once, even though on the surface it looks moot. Decisions don’t die when the originator dies – again, see Rosa Parks – or if the originator never lived, see Citizens United. If it’s a corporation/money, the justices say the speaker doesn’t matter, it’s the speech itself.

    Thinking about this…

    Justices Turn Minor Movie Case Into a Blockbuster

    “Essentially,” Justice John Paul Stevens wrote for the dissenters in the 5-to-4 [Citizens United] decision, “five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

    Supreme Court can do anything it wants. Nobody checks and balances them, except Andrew Jackson who just ignored them and sent the Cherokees on the Trail of Tears anyway, and of course the Civil War checked and balanced Dred Scott.

    btw, I’m thinking everyone in Gitmo should be put in a witness protection program.

  19. thatvisionthing says:

    The Supreme Court can pull anything out of its butt:


    No laws were passed by Congress granting corporations the same treatment under the Constitution as living, breathing human beings, and none has been passed since then. It was not a concept drawn from older English law. No court decisions, state or federal, held that corporations were or should be considered the same as natural persons instead of artificial persons. The Supreme Court did not rule, in this or any other case, on the issue of corporate personhood.

    In fact, to this day there has been no Supreme Court ruling that explicitly explains why a corporation—with its ability to continue operating forever, its being merely a legal agreement that can’t be put in jail and doesn’t need fresh water to drink or clean air to breathe—should be granted the same constitutional rights our Founders fought for, died for, and granted to the very mortal human beings who are citizens of the United States, to protect them against the perils of imprisonment and suppression they had experienced under a despot king.

    But something happened in 1886, even though nobody to this day knows exactly what or why.

    Their court reporter put words in their mouth, that’s what. Law made up, deed done.

    Watch the embedded youtube: “Here’s where everything went a little crazy…”: http://www.youtube.com/watch?v=XMQzim2UI9M#!

    (Hey! That decision was reported AFTER the chief justice was dead… Didn’t moot what he never decided. If the justice can be dead, why can’t the appellant?)

  20. thatvisionthing says:

    Still thinking. I have a question. Would fixing the false headnote be the place to undo corporate personhood? Can a headnote be challenged in court? And if it’s challenged successfully, does corporate personhood collapse? Just wondering how to get real. I have no confidence that an amendment is the answer. I think that’s like what [Rove?] was telling Suskind, while we’re dealing with this reality they’re way ahead of us making a new one. You will never catch up, and if you do you’ll grab air.

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