Posts

Contra Kavanaugh

[As always, check the byline — this is by me, Rayne, and I am not the lawyer on this crew.]

Call your senators RIGHT NOW and insist they do whatever they can to halt Brett Kavanaugh’s nomination to the Supreme Court. He should not be confirmed.

Congressional switchboard number: (202) 224-3121

Leave a voicemail, don’t put it off; there’s less than 24 hours before the hearing begins. Do you need a script to help make your call? Check with @Celeste_pewter at this link; she has you covered. Send a fax if you’d rather. Look up your senators’ contact details at GovTrack.us. But do it, RIGHT NOW. Come back to this when you’re done.

~ | ~ |~

Now that’s the important part of this post, the must-do call to action right up front. Drop everything and make the call before proceeding. Persuade friends and family to do the same right now.

The rest of this post is a formality over which I have fretted for more than a week. There are myriad articles out there, new ones published every day, explaining Kavanaugh’s judicial history and why he is unacceptable as a justice with a life-time appointment.

The most important reason, though, is evident in the actions of the White House and the GOP combined.

Bad, Bad Faith

They have acted and continue to act in bad faith about everything while in office. Kavanaugn’s nomination and their handling of the vetting process is but one more cluster of bad faith acts.

If this administration had nominated Kavanaugh in good faith, his works would have been openly available to the Senate Judiciary Democrats with few exceptions — but this is not the case.

If Kavanaugh himself was a good faith nominee, he would be pushing for his work to be open for evaluation — but he is silent.

If the GOP Congress was acting in good faith, they, too, would demand all Kavanaugh’s documents — but they aren’t. Senator Susan Collins in particular deserves a drubbing here, having signaled an intent to approve Kavanaugh based on the documents she’s seen so far and they are a piddling amount of the documents Kavanaugh created or was involved with during his career. She is willfully buying a pig in a poke in spite of her position on women’s reproductive health.

The hurry to seat Kavanaugh is also unnecessary; Mitch McConnell wants him to begin on October 1 with the SCOTUS’ next session. To meet this wholly arbitrary deadline McConnell has broken with past practice — and shorted the production of documents related to Kavanaugh’s work history.

It’s not just the Trump administration, either, since many of the withheld documents were generated during the Bush administration. An unprecedented and partisan review process by George W. Bush administration lawyers is running in tandem with the National Archives and Records Administration’s document production, which the NARA calls “something that has never happened before.” NARA can’t produce the Kavanaugh documents before the end of October; the Bush lawyers are cherry-picking their selection to meet the 9:30 a.m. Tuesday hearing.

Given what we know of the Bush administration’s efforts on torture and surveillance alone, Senate Democrats are right to be worried about the insufficiency of documents. Pat Leahy indicated what few documents they’ve received include many duplicates, further frustrating analysis.

Why are the administration and the GOP trying so hard to prevent access to documentation of Kavanaugh’s work history? Why the sudden reversal on transparency after a Republicans-only meeting on July 24th? What of the concerns Leahy expressed in an August 17th letter to White House Counsel Don McGahn?

…do you have reason to believe any of the records relate to:
1. The legal justifications or policies relating to the treatment of detainees?
2. The rules governing the detention of combatants?
3. The warrantless wiretapping of Americans?
4. A proposed constitutional amendment to define marriage as a union between one man and one woman?

These topics are far too weighty to be given deliberate short shrift — the specificity of exclusion is troubling, especially when combined with questions about Kavanaugh’s questionable finances and the likelihood Kavanaugh lied under oath before the Senate in 2006. It gives the appearance of a cover-up, which is more than bad faith; it’s malignancy.

Before Justice Kennedy retired we had already quite enough of GOP bad faith. Obama’s SCOTUS nominee Merrick Garland should have had a hearing; his work product had not been suppressed. Obama’s previous nominees had likewise been fully vetted, their documents made available. But Mitch McConnell suppressed Obama’s last appointment in bad faith; there is nothing at all in the Constitution to support the Senate’s denial of Obama’s appointment by refusing to evaluate his nominee.

Article 2, Section 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

(emphasis mine)

Refusing to hold a hearing meant a rejection of the Senate’s role to advise and consent. By the simplest interpretation of the Constitution, McConnell violated his oath of office by failing to support and defend the Constitution of the United States and to well and faithfully discharge the duties of his office.

Unfortunately there is no remedy save for impeachment of McConnell or removal by voters and neither will happen before Tuesday.

Unindicted Co-Conspirator-in-Chief

The next critical reason why Kavanaugh should neither receive a Senate Judiciary Committee hearing nor be confirmed is Trump’s current status as an unindicted co-conspirator.  Although the current conspiracy for which Trump has not yet been indicted is not now in Special Counsel’s folio, we cannot know until after Special Counsel’s Office has completed their work whether Kavanaugh’s appointment was part of a larger conspiracy to defraud the U.S. The Senate should exercise its role to advise and consent by refraining from evaluation of Kavanaugh until Trump’s status is resolved — and the Senate Judiciary Dems should uniformly reject a hearing and confirmation.

What is already known about Kavanaugh suggests he will not act neutrally should the prosecution of any case involving Trump as a co-conspirator come before the SCOTUS. In 2009 Kavanaugh wrote for the Minnesota Law Review on deferrals of civil suits, criminal investigations and prosecutions of the president,

… The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.

Even the lesser burdens of a criminal investigation—including preparing for questioning by criminal investigators—are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.

In the same article, Kavanaugh encouraged Congress to write legislation “exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”

This opinion is flawed and based on what he saw of Clinton, Bush, and Obama presidencies. We no longer have a president who is absorbed by the duties of the office, taking roughly 25% of his time in office to commit violations of the Emoluments Clause by playing golf at his own resorts. The Special Counsel’s Office investigation hasn’t disrupted his golf game; it hasn’t disrupted the remaining 75% of his time in office save for Trump’s entirely elective and unnecessary kvetching via Twitter about a witch hunt.

No feedback from senators so far indicates Kavanaugh would recuse himself on cases coming before SCOTUS related to civil suits or criminal charges against Trump.

Health Care, Women’s Reproductive Rights, Settled Law Unsettled

These issues are all of a piece since they are interrelated by a narrow number of cases and will likely come down to swing senators who claim to care most about these issues — senators Collins and Lisa Murkowski. Kavanaugh has been interviewed by Collins who says she believes he is in agreement with her that Roe v. Wade is settled law and not likely to change. Collins, however, has been screwed over repeatedly by her party in no small part because she trusts uterus-deficient counterparts to see women’s reproductive rights as she does (this is an awful wordy way to say she’s easily played).

Lindsey Graham, however, left off sucking up to Trump to suggest Roe could be overturned by Kavanaugh because “a precedent is important but it’s not inviolate.” Having said this on at least two different Sunday talk shows one might wonder if he is leading Kavanaugh or Collins and Murkowski.

No Senate Democrat should give Graham or Kavanaugh the benefit of the doubt, though. His dissent in Garza v. Hargan, the D.C. Circuit case in which a 17-year-old asylum seeker sought an abortion while in U.S. custody, is disturbing. He wrote,

The Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. …

No. The government has no interests in favoring fetal life as if fetuses had rights co-equal to the mother, teen or adult, whether free or in detention. Forcing a minor to carry another child to term is not in the government’s interests; it’s child abuse.

Kavanaugh’s opinion in Priests for Life v. HHS, wrestling with the issue of religious freedom versus access to contraception, is also disturbing. He concluded,

First, under Hobby Lobby, the regulations substantially burden the religious organizations’ exercise of religion because the regulations require the organizations to take an action contrary to their sincere religious beliefs (submitting the form) or else pay significant monetary penalties.

Second, that said, Hobby Lobby strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations.

Third, this case therefore comes down to the least restrictive means question.

Nowhere in this conclusion does it ever occur to Kavanaugh there are other reasons women are prescribed birth control besides contraception which have nothing to do with employers’ religious beliefs. To be fair, most men are clueless about the benefits of birth control for minimizing cramps and managing other debilitating menstrual problems. But this conclusion combined with the dissent in Garza do not assure that Kavanaugh will see Roe as settled.

Semi-Automatic Weapons Wankery

Not good. Kavanaugh dissented in Heller v. District of Columbia, a case which upheld Washington D.C.’s ban on semi-automatic weapons, writing that the Supreme Court

“held that handguns — the vast majority of which today are semiautomatic — are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens.”

This blows off the 1994 Federal Assault Weapon Ban which expired in 2004 and should have been renewed since civilian deaths by assault weapons escalated after 2004.

Kavanaugh couldn’t be trusted to support a ban on assault weapons which are semi-automatic.

Net Neutrality No-Go

This issue infuriates me as much as Kavanaugh’s dissent on Garza. Last year in U.S. Telecom Association v. FCC he wrote,

… While the net neutrality rule applies to those ISPs that hold themselves out as neutral, indiscriminate conduits to internet content, the converse is also true: the rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathway—i.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISP’s exercise of “editorial intervention.” …

Except ISPs are nearly inseparable from telecom — which we would not allow any editorial rights over content — and ISPs are too thin in some markets, forcing customers to accept what might be the only ISP in their area along with that ISP’s “editorial intervention.”

I’m also disturbed by the examples he used of throttled content like Netflix and Ticketmaster while ignoring the possibility an ISP could exercise “editorial intervention” over essential services like email and VoIP.

Nothing like having Verizon sitting on the Supreme Court.

Surveillance State

Good Lord, his understanding of metadata…Kavanaugh wrote in his opinion for Larry E. Klayman v. Barack Obama, et al. (2015) denying an emergency petition,

… In my view, that critical national security need outweighs the impact on privacy occasioned by this program. The Government’s program does not capture the content of communications, but rather the time and duration of calls, and the numbers called. In short, the Government’s program fits comfortably within the Supreme Court precedents applying the special needs doctrine. … In sum, the Fourth Amendment does not bar the Government’s bulk collection of telephony metadata under this program. …

There’s no chance at all to his thinking that metadata itself could be the message.

~ | ~ |~

That’s more than enough without having to really dig, and I haven’t even touched on Kavanaugh with regard to LGBT equality. White House and GOP bad faith is enough reason to insist Kavanaugh not be confirmed.

If you made it this far without having called your senators, do it RIGHT NOW and insist they do whatever they can to halt Brett Kavanaugh’s confirmation to the Supreme Court. He should not serve a lifetime as a justice given what we already know.

Congressional switchboard number: (202) 224-3121

Why Would Don McGahn (and His Lawyer) Cooperate in a Piece Claiming He Cooperated with Mueller (on Obstruction)?

As I laid out here, the latest NYT obstruct-a-palooza on Don McGahn “cooperating” with Robert Mueller spins what is probably a lawyer covering his own legal jeopardy with a claim of full cooperation.

But why did he (and his lawyer, William Burck) cooperate in it? Why spin a fanciful tale of being disloyal to your boss, even if it’s just to blame him for it before he blames you?

The most obvious answer is he’s trying to convince Mueller he’s not responsible for the legal shenanigans of (as the NYT continues to spin it) the obstruction of the investigation, or of the legal shenanigans of Trump generally.

There may well be an aspect of that, though I wouldn’t want to be (and hope I’m not) in a position where my legal jeopardy relied on how successfully I could spin Maggie and Mike, even if I were as expert at doing so as Don McGahn is.

A better answer may lie in this observation from my last post:

By far the most telling passage in this 2,225+ word story laying out Don McGahn’s “cooperation” with the Mueller inquiry is this passage:

Though he was a senior campaign aide, it is not clear whether Mr. Mueller’s investigators have questioned Mr. McGahn about whether Trump associates coordinated with Russia’s effort to influence the election.

Over two thousand words and over a dozen sources, and Maggie and Mike never get around to explaining whether Don McGahn has any exposure in or provided testimony for the investigation in chief, the conspiracy with Russia to win the election.

Consider: the story Maggie and Mike (and Don McGahn’s lawyer) spin is that Don McGahn let Trump bully him around on some issues in early 2017, which led to some things that might look like obstruction of justice. An unfortunate occurrence, surely. But McGahn might be forgiven for fucking things up in early January 2017. After all, he was new to the whole White House Counseling thing; he had never worked in a White House before. Beginner’s mistake(s), you might call the long list of things he fucked up at the beginning of his tenure, which Maggie and Mike nod to but don’t describe in full resplendent glory.

His relationship with the president had soured as Mr. Trump blamed him for a number of fraught moments in his first months in office, including the chaotic, failed early attempts at a ban on travelers from some majority-Muslim countries and, in particular, the existence of Mr. Mueller’s investigation.

Don McGahn’s skills, it turns out, lie elsewhere.

While he has bolloxed most of the things White House Counsels are supposed to do (like keeping the White House out of legal and ethical trouble), he has had unsurpassed success at stacking the courts. I doubt there’s an ideological Republican in the country who isn’t thrilled with McGahn’s success at stacking the courts.

Update: Case in point.

Indeed (this becomes important in just a bit), McGahn’s success at stacking the courts is one of the biggest reasons why Republicans in Congress put up with the rest of Trump’s shit. Being President, for many Republicans, isn’t about governing; it’s about stacking the courts.

It turns out, though, that McGahn had another job before he became an expert court-stacker. For decades, Don McGahn has been one of the Republican party’s key campaign finance lawyers.

That’s how he grew to be close to Trump when, as Maggie and Mike describe,

McGahn joined the Trump team as an early hire said to like the candidate’s outsider position.

Don McGahn had come to prominence in the party at the NRCC and was rewarded for it with a seat on the FEC, where he made campaign finance more slushy.

But probably not slushy enough.

Here’s where Maggie and Mike’s failure to get an answer for whether longtime Republican campaign finance expert Don McGahn has been questioned about his role in the conspiracy with Russians to win the election (not to mention their failure to pin down when his third interview with Mueller’s team took place, after he happily revealed when the first two did) becomes important.

Don McGahn might be forgiven for bolloxing up the White House Counsel job. He was new at that (and he was busy, anyway, stacking the courts).

But at least three of the areas where Mueller’s team might find a conspiracy with Russia (or other foreigners) to win the election involve campaign finance issues — Don McGahn’s expertise. Those are:

  • Whether knowingly employing British Cambridge Analytica employees without getting them proper visas constitutes illegal foreign influence?
  • Whether accepting a Trump Tower meeting with Russians offering dirt on Hillary Clinton constitutes accepting a thing of value?
  • Whether the campaign was sufficiently firewalled from the  dodgy shit Roger Stone was doing (which has been a focus of the last six months of Mueller’s time)?

My wildarse guess is that campaign finance expert Don McGahn might find a way to finesse hiring foreign Cambridge Analytica employees. My wildarse guess is that campaign finance expert Don McGahn could claim ignorance about the illegal details of the Trump Tower and other foreign influence peddling meetings.

My wildarse guess is that campaign finance expert Don McGahn did not sufficiently firewall Stone off from the campaign. Especially given that he was involved in both incarnations of Stop the Steal — the effort to stamp down a convention rebellion, and the effort (which worked in parallel to a Russian one) to use claims of a “rigged” election to suppress Democratic voters. Especially given that he was loved in the Republican party for leaning towards slush over legal compliance.

Given how central campaign finance violations are in any question of a conspiracy with Russia, it is malpractice for Maggie and Mike to publish a story without determining whether — after being grilled by Mueller’s team for two days last fall about whether he fucked up White House Counseling — McGahn has more recently been grilled extensively about whether he fucked up campaign finance, the thing he got hired for in the first place. The thing he’s supposed to be an expert in.

But Maggie and Mike believe Trump is only being investigated for obstruction, so seeding a big puff piece with them is a sure bet you won’t get asked about your obviously central role (or not) in any conspiracy involving campaign finance.

That’s just part of a potential explanation for why Don McGahn (and his lawyer) would seed a big puff piece with Maggie and Mike, making it look like McGahn had cooperated a lot on something he was never an expert in — White House Counseling — but remaining utterly silent on whether he cooperated on something he is undoubtedly an expert in (even if he tends to prefer slush to law). Better to get in trouble for cooperating on the stuff Trump and his lawyers have been successfully distracting with for the last six months rather than cooperating with prosecutors on a case about conspiring with Russian spies to win an election, the stuff that will elicit cries of Treason and with it badly tarnish the Republican party.

Then there’s this, the last great court-stack. Numerous people have noted, but Maggie and Mike did not, even while noting that McGahn is in the middle of a SCOTUS fight:

Mr. McGahn is still the White House counsel, shepherding the president’s second Supreme Court nominee, Brett M. Kavanaugh, through the confirmation process.

William Burck, McGahn’s lawyer, is his partner-in-crime in his last great court-stack.

When Trump (presumably based on the advice of his chief court-stacker, Don McGahn) nominated Brett Kavanaugh to the Supreme Court, people (including Mitch McConnell) warned him of the danger of nominating someone with such an extensive paper record. Nevertheless, Republicans started with an assumption that that record would be made public. Until July 24, when Republicans had a private meeting and realized they had to suppress Kavanaugh’s record as White House Staff Secretary.

It is not surprising then, that on July 19, 2018, while discussing preparations for Judge Kavanaugh’s confirmation hearing, Senator Cornyn — the Majority Whip and a senior member of the Judiciary Committee — said that the production of documents Judge Kavanaugh had “generated . . . authored…or contributed to” during his tenure as White House Staff Secretary should be produced to the Committee.  He stated that it “just seems to be common sense.”

However, less than a week later, following a White House meeting with you on the records production on July 24, the Republican position abruptly and inexplicably shifted.  Since that meeting, Senate Republicans refused to request any and all documents from Judge Kavanaugh’s three years as White House Staff Secretary, regardless of authorship.  Immediately after the meeting, Senator Cornyn described requesting any Staff Secretary records as “a bridge too far.”  Days later, Chairman Chuck Grassley submitted a records request to the National Archives and Records Administration (NARA) and omitted any of Judge Kavanaugh’s records as Staff Secretary.

Since then, William Burck has taken time away from representing Don McGahn and Reince Priebus and Steve Bannon to personally suppress lots of Kavanaugh’s records as White House Staff Secretary. And Chuck Grassley has moved up Kavanaugh’s confirmation process to make sure that some of production being slow-rolled by Don McGahn’s lawyer will not be release before Kavanaugh gets a vote on a lifetime appointment.

There’s clearly something in Kavanaugh’s record as White House Staff Secretary that might lead Susan Collins or Lisa Murkowski to vote against Kavanaugh — or make the entire nomination toxic in time for the mid-terms.

Mind you, whether Don McGahn’s failures on the topic he is supposed to be an expert on, campaign finance, contribute to getting the President’s lackeys indicted for a conspiracy may not directly relate to his last great hurrah in stacking the courts, solidifying a regressive majority on SCOTUS for a generation and with it adding someone who will suppress this investigation.

Then again it might.

Most Republicans, I suspect, will one day become willing to jettison Trump so long as they can continue stacking the courts. Trump, one day, may be expendable so long as McGahn’s expertise at stacking the court holds sway. At that level, McGahn’s political fortunes may actually conflict with Trump’s.

But not if he (and his lawyer) fuck up the last great court-stack. Not if they get blamed for failing on McGahn’s area of expertise — campaign finance — and in so doing lead to a delay in and with it the demise of the Kavanaugh confirmation.

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

 

Guy Who Worked at White House When It Self-Authorized Dragnet Thinks Dragnets Are Cool

Eleven judges from the DC Circuit denied Larry Klayman’s request to overturn the stay that a panel put on Richard Leon’s injunction against the dragnet today.

Of those 11 judges, just one decided to weigh in on the legality of the dragnet Leon had ruled unconstitutional: Brett Kavanaugh. In doing so, he laid out a condensed version of the Special Needs search used by dragnet boosters.

I vote to deny plaintiffs’ emergency petition for rehearing en banc. I do so because, in my view, the Government’s metadata collection program is entirely consistent with the Fourth Amendment. Therefore, plaintiffs cannot show a likelihood of success on the merits of their claim, and this Court was right to stay the District Court’s injunction against the Government’s program.

[snip]

Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient “special need” – that is, a need beyond the normal need for law enforcement – that outweighs the intrusion on individual liberty.

[snip]

The Government’s program for bulk collection of telephony metadata serves a critically important special need – preventing terrorist attacks on the United States. See THE 9/11 COMMISSION REPORT (2004). In my view, that critical national security need outweighs the impact on privacy occasioned by this program.

Kavanaugh, of course, served as a White House lawyer and as Staff Secretary during the period when George Bush kept self-authorizing such a dragnet. While there’s no reason to believe he was involved in the dubious theories used to justify Stellar Wind (which were largely a version of this Special Needs argument), he may well have been consulted — as he apparently was on detainee treatment, though he claimed not to have been during his confirmation. He may also have seen the paperwork authorizing the program.

No doubt Kavanaugh would espouse this view whether or not he had worked for a guy who might face real legal trouble if this theory didn’t hold sway. But as people cite from this language in the future, they should remember that of all the judges who reviewed this decision, only Kavanaugh had this kind of personal tie to the dragnet. And only Kavanaugh saw fit to weigh in.

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.

Read more

Shorter DC Circuit: Yeah, Rogers Brown and Kavanaugh Are Extremists

Charlie Savage noted an interesting part of yesterday’s DC Circuit ruling upholding the detention of Ghaleb Nassar al-Bihani: it explicitly disagreed with earlier assertions made by Janice Rogers Brown and Brett Kavanaugh that international law could not bind presidential authority.

On Tuesday, all nine judges on United States Court of Appeals for the District of Columbia Circuit rejected a request by Mr. Bihani to rehear his case. But seven of the nine judges issued an unusual one-paragraph note saying that they viewed Judge Brown’s and Judge Kavanaugh’s discussion of international law as irrelevant to deciding Mr. Bihani’s fate.

Stephen I. Vladeck, an American University law professor who filed a friend-of-the-court brief asking the court to rehear the case, said the note amounted to a nullification of the more sweeping parts of the January ruling without the court bothering to rehear it. The paragraph, he said, tells the world that the section of the January ruling about international law should be treated like what lawyers call “dicta” — editorializing about issues that are not necessary to decide the matter at hand, which has little controlling authority for other cases.

“They’ve basically removed the single biggest complaint people had with that opinion,” Mr. Vladeck said. “They said, ‘We don’t think we need to rehear the whole case just to limit the opinion — we can just say it, and going forward this is how we understand it.’ That matters a lot.”

Click through to read about Rogers Brown and Kavanaugh’s whiny response.

So the lesson here? The Court upholds the government’s claim it needs to hold Osama bin Laden’s cooks like Bihani in custody to keep us all safe. But it does so on the logic that holding cooks is accepted under the rules of war.