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DC Appeals Court Throws Out Hamdan Conviction

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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 →

Court Dockets Are Becoming the 21st Century Memory Hole

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Dafna Linzer has two important pieces on the habeas petition of Abdul Rahim Mohammed Uthman which should both be read in full. This one describes how the government’s case against Uthman, which alleges that he was one of Osama bin Laden’s guards, relies on the following testimony:

  • A statement from Hakim Abd Al Karim Amin Bukhari describing him as a member of OBL’s security detail. In his opinion on the case, Judge Henry Kennedy Jr treated that statement with skepticism because he believed it may have come second-hand from information Bukhari learned at Gitmo, and because Bukhari had become psychotic while at Gitmo, which rendered his statements about other detainees–according to a military psychologist–unreliable.
  • A witness statement from Abdul Rahman Ma’ath Thafir al Amri, based on a photograph, identifying Uthman as “Yasser Al-Madani.” As Linzer points out, calling him “al-Madani” would label him as a Saudi, not as the Yemeni he is. Al Amri killed himself three years ago after a hunger strike at Gitmo.
  • A statement from Salim Hamdan identifying Uthman as “Hudayfah al-Adani,” which is one of the few things Kennedy accepted as credible.
  • A statement from Yemeni detainee Sharqawi Abdul Ali al Hajj identifying Uthman as an OBL bodyguard. Before making that statement at Gitmo, Hajj was tortured in Jordan over a period of 19 months in Jordan. Kennedy ruled that Hajj’s statement was too closely tied to the torture he experienced in Jordan to be considered reliable.
  • A statement from Yemeni detainee Sanad Yislam al Kazimi saying a photo of Uthman looked like Hadayfah al-Yemeni, whom Kazimi claims to have seen in Kabul several months before Uthman arrived in Afghanistan. Kazimi claims to have been severely tortured in Dubai and Kabul in 2003. As a result, Kennedy deemed his statement, like Hajj’s, to be too closely tied to torture to be treated as credible.

Go read Linzer’s piece for much more on the thin case against Uthman. And note, Uthman is one of the 48 men the government claims it has reason to hold indefinitely.

The other piece provides background on how Linzer was able to piece together all those details from Kennedy’s opinion. As she describes, DOJ accidentally submitted Kennedy’s opinion without redacting it. Only after she pulled a copy of it did DOJ remove it from PACER entirely and–a day later–replace the opinion with a significantly altered version.

A day after his March 16 order was filed on the court’s electronic docket, Kennedy’s opinion vanished. Weeks later, a new ruling appeared in its place. While it reached the same conclusion, eight pages of material had been removed, including key passages in which Kennedy dismantled the government’s case against Uthman.

[snip]

The alterations are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies in the government’s case were deleted. Even the date and circumstances of Uthman’s arrest were changed. In the first version, the judge said Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities. Rewritten, Kennedy said in the public opinion that Uthman admitted being captured “in late 2001 in the general vicinity of Tora Bora,” the cave complex where bin Laden was thought to be hiding at that time.

Linzer’s story provides a detailed background of what happened with this opinion: how DOJ tried to reclaim all the copies of it, how Kennedy had to insist on an opinion being published at all, how they forced Kennedy to write another version, how DOJ has since released the government’s appeal of Kennedy’s order with information redacted in his opinion left unredacted in their appeal.

Particularly troubling is Linzer’s description of how the completely altered opinion falsely suggests Uthman was present at Tora Bora with Osama bin Laden, even while it hides evidence that he was turned over by Pakistanis implicated in turning over Arabs for bounty.

Kennedy’s original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.

Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized “in late 2001 in the general vicinity of Tora Bora, Afghanistan.”

The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.

Now all of this is disturbing enough. But I’m particularly interested in the way DOJ tried to hide the fact that the opinion had been altered.

Even the court docket was altered. When the opinion was originally posted on March 16, the docket noted Kennedy’s grant of the writ of habeas corpus to the petitioner. Today, the entry for March 16 simply reads: “Document Entered In Error Erroneously.”

That is, the government is using classification to conduct legal spin, and then it is hiding all evidence they have done so. This is the same DOJ, of course, that is disappearing all evidence of the proceedings against high level Colombian terrorists extradited for drug-related infractions (but not terrorism), and in the process, removing them from Colombia’s reconciliation process. While it’s not clear whether the government is doing the latter just to protect an ongoing investigation or doing it to protect the members of the Colombian government with ties to these right wing terrorists, the way in which the government has turned the court docket into a memory hole seems to be playing a central role in completely arbitrary designations of who is and who is not a terrorist.

The war on terror has become capricious enough. But as the docket increasing gets treated like Orwell’s memory hole, it plays a key role in the government’s ability to sustain its arbitrary claims about what makes a person a terrorist.

Hamdan Gets A Full Panel Review

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This is a rather interesting pre-holiday document dump:

The Pentagon’s war crimes appeals court announced without explanation Friday that the full U.S. Court of Military Commission Review, not a smaller panel, would review the conviction of Osama bin Laden’s driver, now free and living in Yemen.

[snip]

A three-judge panel heard both sides of the case in January, in Washington D.C. All the briefs had already been filed, and attorneys were anticipating a decision.

Now, five judges on the appeals court — Navy Capts. Daniel E. O’Toole and Eric E. Geiser, Air Force Cols. Cheryl H. Thompson and Barbara Brand and Army Col. David Conn — announced the “en banc” or full court review in a single page order issued to attorneys hours before the start of the long Labor Day weekend.

Rosenberg goes on to note that Geiser retired today–I’m asking for clarification whether that means he’ll be part of this full panel or not. [Update from Rosenberg: He’s retired and will not be deciding. He did decide though to vote for en banc review.]

At issue is whether the charges Salim Hamdan was ultimately convicted of–material support and conspiracy–were legitimate charges for him since they were not war crimes in 2001, when Hamdan was captured. In fact, Assistant Attorney General David Kris has said he doesn’t think material support charges can be used in military commissions at all (though he was okay with charging conspiracy 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. [my emphasis]

Gosh, these military commissions sure aren’t holding up to scrutiny, are they?

Jeff Sessions: George Bush Waited 7 Years to Set Up Military Commissions

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Jeff Sessions has already seized on yesterday’s release of DOJ’s list of 390 terrorist convictions and twisted it to sustain his claim that we need to try Khalid Sheikh Mohammed in a military commission. Much of his response consists of making non-specific claims about individuals on the list in an attempt to minimize the applicability of all these convictions.

The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.

Among the cases cited is that of Zaccarias Moussaoui, which was fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared the 20th hijacker the death penalty. Due to gaps in federal law, many of the problems prosecutors encountered in the Moussaoui trial will be experienced in future terrorism trials.

[snip]

The figures released today also contradict the Attorney General’s claims on the Christmas Day Bomber: two of the terrorists on this list were placed in military custody precisely because the criminal justice system severely limits our ability to gather intelligence. [my emphasis]

But by far the most amusing attack on this list is Jeff Sessions’ explanation–after pointing to the procedural problems and delays in the Moussaoui trial–that most of these 390 convictions happened before military commissions were operational, which he dates to 2008.

Moreover, the overwhelming bulk of these cases are for acts committed by U.S. citizens—which KSM and the Christmas Bomber are not—and occurred before military commissions became fully operational in 2008. [my emphasis]

Someone better tell George Bush, who claims to have set up military commissions on November 13, 2001. And someone better tell Salim Hamdan, who was first charged in a military commission in 2004, and whose appeal of the terms of the military commissions lasted two years, after which there was another two year delay until his trial began.

In other words, Jeff Sessions deals with precisely the kind of delay we can expect for any future military commissions–one of the biggest reasons not to use them–by simply ignoring the delays that have already happened.

David Kris: Our Only Military Commission Convictions May Be Illegal

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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. Read more →

It’s Called Justice

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Not only did Michael Mukasey, in his most reasonable act as AG, refuse to act on Bush’s request that he help Ohio Republicans prevent 200,000 voters from voting.

But now, the military judge in charge of Hamdan’s Show Trial has refused the Bush Administration’s request that the jury re-sentence Hamdan so he won’t be released on Bush’s watch. 

A military judge rejected a Bush administration move to that could have kept Osama bin Laden’s former driver locked up for an additional five years.

[snip]

In a two-paragraph order, [Judge Keith Allred] said he had read the filings and legal citations, as well as reviewing the sentencing hearing transcript.

"The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied," he wrote.

I guess Poppy and Dick never told you this whole all-powerful bullshit would end as soon as you became a lame duck, huh, Bush?