Hamdan v. U.S.
--- F.3d ----, 2012 WL 4874564
C.A.D.C.,2012.
October 16, 2012
KAVANAUGH, Circuit Judge:
*1
The
United States is at war against al Qaeda, an international terrorist
organization. Al Qaeda's stated goals are, among other things, to drive
the United States from posts in the Middle East, to devastate the State
of Israel, and to help establish radical Islamic control over the
Greater Middle East. Al Qaeda uses terror to advance its broad
objectives. Al Qaeda terrorists do not wear uniforms, and they target
American civilians and members of the U.S. Military, as well as U.S.
allies. After al Qaeda's attacks on the United States on September 11,
2001, Congress authorized the President to wage war against al Qaeda.
That war continues.
[1] [2]
In war, when the United States captures or takes custody of alien enemy
combatants or their substantial supporters, it may detain them for the
duration of hostilities. Moreover, the United States may try
unlawful alien enemy combatants before military commissions for their war crimes.
See
Hamdi v. Rumsfeld, 542 U.S. 507, 518–24, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004);
Ex parte
Quirin, 317 U.S. 1, 26–45, 63 S.Ct. 2, 87 L.Ed. 3 (1942).
This case raises questions about the scope of the Executive's authority to prosecute war crimes under current federal statutes.
This
particular dispute involves the military commission conviction of Salim
Hamdan, an al Qaeda member who worked for Osama bin Laden. In 2001,
Hamdan was captured in Afghanistan. He was later transferred to the U.S.
Naval Base at Guantanamo Bay, Cuba.
Hamdan was not just detained at Guantanamo as an enemy combatant. He was also accused of being an
unlawful enemy combatant and was tried and convicted by a
military commission for “material support for terrorism,” a war crime
specified by the Military Commissions Act of 2006.
See 10 U.S.C. § 950t(25);
see also 10 U.S.C. § 950v(b)(25) (2006) (previous codification of same provision). Hamdan's conviction was based on actions he took from 1996 to 2001—
before enactment of the Military Commissions Act. At the time of
Hamdan's conduct, the extant federal statute authorized and limited
military commissions to try violations of the “law of war.” 10 U.S.C. § 821.
As
punishment for his war crime, Hamdan was sentenced by the military
commission to 66 months' imprisonment, with credit for some time already
served. Hamdan's sentence expired in 2008. Although the United States
may have continued to detain Hamdan until the end of hostilities
pursuant to its wartime detention authority,
see
Hamdi, 542 U.S. at 518–22, Hamdan was transferred in late
2008 to Yemen and then released there. Even after his release, Hamdan
has continued to appeal his U.S. war crimes conviction.
This
appeal presents several issues. First, is the dispute moot because
Hamdan has already served his sentence and been released from U.S.
custody? Second, does the Executive have authority to prosecute Hamdan
for material support for terrorism on the sole basis of the 2006
Military Commissions Act—which specifically lists material support for
terrorism as a war crime triable by military commission—even though
Hamdan's conduct occurred from 1996 to 2001, before enactment of that
Act? Third, if not, did the pre-existing statute that authorized
war-crimes military commissions at the time of Hamdan's conduct—a
statute providing that military commissions may try violations of the
“law of war,” 10 U.S.C. § 821—proscribe material support for terrorism as a war crime?
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.FN1
I
In
1996, Salim Hamdan traveled from his native Yemen to Pakistan and then
to Afghanistan to participate in jihad. In Afghanistan, Hamdan attended
an al Qaeda training camp. At the camp, Hamdan received weapons
training, met Osama bin Laden, and listened to bin Laden's lectures.
Later
in 1996, Hamdan became an al Qaeda driver. His duties included
transporting personnel, supplies, and weapons between an al Qaeda
guesthouse and al Qaeda's al Farouq training camp in Afghanistan.
Eventually, Hamdan became Osama bin Laden's personal driver and
bodyguard.
In
August 1996, Osama bin Laden publicly declared war on the United
States. That declaration came after various al Qaeda terrorist attacks,
including the 1993 bombing of the World Trade Center. In 1998, bin Laden
issued a fatwa calling for the indiscriminate killing of Americans,
including American civilians. Hamdan was fully aware of bin Laden's
public statements targeting the United States.
*3
In
August 1998, al Qaeda operatives bombed U.S. Embassies in Kenya and
Tanzania, killing 257 people, including 12 Americans. Hamdan was
generally aware that such an attack was planned. Around the time of the
attack, Hamdan assisted Osama bin Laden in evacuating from Kandahar and
moving around Afghanistan.
Later
in August 1998, asserting the President's Article II power of
self-defense, President Clinton ordered the U.S. Military to bomb
targets in Afghanistan in an attempt to kill bin Laden. Bin Laden
narrowly avoided being killed in that military action.
In
October 2000, at the direction of bin Laden and senior al Qaeda
leaders, al Qaeda bombed the U.S.S. Cole off the coast of Yemen, killing
17 Americans and injuring many others. Around that time, Hamdan
returned to Afghanistan from Yemen.
In
August 2001, Hamdan drove bin Laden to various planning meetings in
Afghanistan. Several days before September 11, 2001, bin Laden told
Hamdan that they had to evacuate their compound because of an impending
operation. Hamdan drove bin Laden to Kabul. They later moved to a series
of locations around Afghanistan.
On
September 11, 2001, al Qaeda attacked the United States, killing
thousands of civilians and causing massive long-term damage to the
American economy and way of life.
In
the days following the attacks of September 11, 2001, Congress passed
and President George W. Bush signed the Authorization for Use of
Military Force. That law authorized the President
to
use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future
acts of international terrorism against the United States by such
nations, organizations or persons.
Pub.L. No. 107–40, 115 Stat. 224 (2001).
Consistent
with the 2001 Authorization for Use of Military Force, President Bush
directed the use of force to kill or capture and detain al Qaeda
operatives, and where appropriate to try unlawful al Qaeda combatants
who had committed war crimes. On October 7, 2001, as part of the overall
operation, President Bush ordered U.S. troops into Afghanistan to wage
war against al Qaeda there, as well as against the Taliban government
that was in control of Afghanistan and had been supporting and harboring
al Qaeda.
On
November 13, 2001, the President issued an executive order establishing
military commissions to try al Qaeda members and aiders and abettors
who had committed war crimes as defined under the “laws of war” or other
“applicable laws.” Military Order of Nov. 13, 2001, 66 Fed.Reg. 57,833;
57,833–34. The executive order did not purport to rely solely on the
President's constitutional authority; rather, it cited two separate
statutes as congressional authorization for the President to employ
military commissions: the 2001 Authorization for Use of Military Force
and 10 U.S.C. § 821, the long-standing statute that authorized military commissions to try violations of the “law of war.”
*4
In
November 2001, Hamdan was captured in Afghanistan while driving toward
Kandahar. The car he was driving contained two anti-aircraft missiles.
Also in the car was an al Qaeda-issued document that authorized the
bearer to carry a weapon in Afghanistan. Hamdan's captors turned him
over to U.S. authorities. He was later transferred to Guantanamo Bay,
Cuba, and the U.S. Military detained him there as an enemy combatant.
[3]
At Guantanamo, Hamdan not only was detained as an enemy combatant but
also was eventually charged with one count of conspiracy and was to be
tried before a military commission as an
unlawful enemy combatant who had committed war crimes.FN2 Hamdan raised various legal objections to the prosecution, and the case ultimately wound
its way to the Supreme Court. The Supreme Court held that the military
commission rules then in place contravened statutory limits because the
rules did not comply in certain respects with statutory restrictions
contained in 10 U.S.C. § 836.
See
Hamdan v. Rumsfeld, 548 U.S. 557, 613–35, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006).
The Court split 4–3 on and thus did not decide a separate issue:
whether conspiracy was a cognizable charge in a military commission
under the “law of war” for purposes of 10 U.S.C. § 821.
Compare
Hamdan, 548 U.S. at 595–612 (Stevens, J., plurality opinion) (conspiracy is not a law of war crime),
with
id. at 697–706 (Thomas, J., dissenting) (conspiracy is a law
of war crime). (Justice Kennedy did not address that issue; Chief
Justice Roberts did not participate in the case.)
In the
Hamdan case, several Justices specifically invited Congress to
clarify the scope of the President's statutory authority to use military
commissions to try unlawful alien enemy combatants for war crimes.
See
Hamdan, 548 U.S. at 636 (Breyer, J., concurring);
id. at 636–37 (Kennedy, J., concurring).
In the wake of the Supreme Court's decision in
Hamdan, Congress enacted a new military commissions statute.
See Military Commissions Act of 2006, Pub.L. No. 109–366, 120 Stat. 2600.
Of particular relevance here, Congress expanded military commissions
beyond prosecuting violations of the generic “law of war,” spying, and
aiding the enemy, which were the crimes listed by statute at the time.
See 10 U.S.C. §§ 821, 904, 906. Of most importance here, Congress alleviated some of the uncertainty highlighted in
Hamdan about the phrase “law of war” in 10 U.S.C. § 821
by listing a large number of specific war crimes that could be charged
by military commission, including conspiracy and material support for
terrorism.
See § 3(a), 120 Stat. at 2630. (In 2009, Congress enacted a new
Military Commissions Act; that law did not make changes relevant to this
case.
See Pub.L. No. 111–84, 123 Stat. 2574.)
After
passage of the 2006 Military Commissions Act, Hamdan was charged anew
before a U.S. military commission on one charge of conspiracy and one
charge, containing eight specifications, of material support for
terrorism.
*5
At his
military commission trial, Hamdan was acquitted of conspiracy but
convicted of five specifications of material support for terrorism. In
August 2008, he was sentenced to 66 months' confinement and credited for
having already served most of that time.
When
his sentence ended later in 2008, the war against al Qaeda had not
ended. Therefore, the United States may have continued to detain Hamdan
as an enemy combatant.
See
Hamdan, 548 U.S. at 635;
Hamdi v. Rumsfeld, 542 U.S. 507, 518–24, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004).
But in November 2008, Hamdan was transferred by the U.S. Military to
Yemen, and he was then released on or about January 8, 2009, in Yemen.
After
his release, Hamdan nonetheless continued to appeal his U.S. military
commission conviction. On appeal to the en banc Court of Military
Commission Review, Hamdan argued (i) that Congress lacked authority
under Article I of the Constitution to make material support for
terrorism a war crime triable by military commission; (ii) that in any
event, the 2006 Military Commissions Act, which listed material support
for terrorism as a war crime, could not be
retroactively applied to him because his conduct occurred from
1996 to 2001; and (iii) that the statute in effect at the time of his
alleged conduct—10 U.S.C. § 821,
which limited military commissions to violations of the “law of
war”—did not authorize prosecution of material support for terrorism as a
war crime. In 2011, the Court of Military Commission Review affirmed
the conviction.
See
United States v. Hamdan, 801 F.Supp.2d 1247 (C.M.C.R.2011) (en banc).
II
[4] [5]
We must first address the issue of mootness—that is, whether this
appeal is moot because Hamdan has been released from U.S. custody.
Although the parties agree that the appeal is not moot, mootness is a
jurisdictional question that we must independently consider.
See
United States v. Juvenile Male, ––– U.S. ––––, –––– – ––––, 131 S.Ct. 2860, 2864–65, 180 L.Ed.2d 811 (2011);
Sibron v. New York, 392 U.S. 40, 50 n. 8 (1968).
[6]
This case is a direct appeal of a military commission conviction. In
the criminal context, a direct appeal of a criminal conviction is not
mooted by a defendant's release from custody.
See
Sibron, 392 U.S. 40. The Supreme Court has so ruled in part
because of the collateral legal consequences of a conviction—namely, the
possibility that the defendant could commit or be tried for a new
offense, the punishment for which could take account of a past
conviction. Those collateral consequences are of course present in
virtually all criminal cases (other than, for example, when the
defendant has died after the conviction and thus obviously cannot commit
a new offense). The same collateral consequences are present in
military commission conviction cases.
See, e.g., Manual for Military Commissions,
Rules 1001(a)(2), 1001(b)(1)(A) (2012) (in military commission
sentencing, the prosecution may “introduce evidence of military or
civilian convictions, foreign or domestic, of the accused” as an
aggravating factor); 18 U.S.C. § 3553(a)(1) (sentencing courts shall take into account “the history and characteristics of the defendant”).FN3
Applying the relevant Supreme Court precedent, we therefore conclude
that a direct appeal of a military commission conviction is likewise not
mooted by the defendant's release.
*6
To be
sure, that principle generally does not apply to the habeas context
where a detainee is challenging the basis for executive detention. Such a
habeas case is sometimes moot after the detainee's release.
See
Spencer v. Kemna, 523 U.S. 1, 8–14, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998);
Gul v. Obama, 652 F.3d 12, 17 (D.C.Cir.2011). In our recent habeas decision in
Gul, where a former Guantanamo detainee objected to a military
detention determination after his release, this Court dismissed the case
as moot.
But
Hamdan is not just a military detainee; he has been convicted of a war
crime by military commission. Therefore, our recent decision in
Gul does not control here. Rather, this case is controlled by the
principle that a direct appeal of a conviction is not mooted by the
defendant's release from custody.
III
[7] Under a law now codified at 10 U.S.C. § 821, Congress has long authorized the Executive to use military commissions to try war crimes committed by the enemy.
See
Ex parte Quirin, 317 U.S. 1 (1942). That statute authorizes
military commissions to try violations of the “law of war”—a term, as we
explain below, that has long been understood to mean the international
law of war.
See
Hamdan v. Rumsfeld, 548 U.S. 557, 603, 610, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (plurality);
id. at 641 (Kennedy, J., concurring);
Quirin, 317 U.S. at 27–30, 35–36. Two other longstanding statutes
separately authorize military commission prosecutions for spying and
aiding the enemy.
See 10 U.S.C. §§ 904, 906.FN4
After the Supreme Court's 2006 decision in
Hamdan, Congress enacted a new military commissions statute that,
among other things, clarified the scope of the Executive's authority to
try war crimes.
See Military Commissions Act of 2006, Pub.L. No. 109–366, 120 Stat. 2600.
Of particular relevance here, Congress expanded military commissions
beyond trying violations of the generic “law of war,” spying, and aiding
the enemy. Congress instead also listed a large number of specific war
crimes that could be tried by military commission, including conspiracy
and material support for terrorism.
See id. § 3(a), 120 Stat. at 2630 (now codified at 10 U.S.C. § 950t).
[8] 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. FN5
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. The
Government responds that Hamdan's focus on the Define and Punish Clause
alone is misplaced. According to the Government, the Declare War Clause
and other war clauses in Article I, as supplemented by the Necessary and
Proper Clause, independently authorize Congress to establish military
commissions to try an enemy's war crimes. And the Government further
contends that Congress's broad authority under the Declare War Clause is
not constrained by the evolving and often difficult to discern
standards of international law. Therefore, as the Government sees it,
Congress has authority to make material support for terrorism a war
crime triable by military commission.
*7
We do not decide that antecedent question. 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,FN6 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.
A
As
is clear from the text of the Military Commissions Act of 2006,
Congress was quite concerned about the ex post facto implications of
retroactively prosecuting someone under the Act for conduct committed
before its enactment. Congress tried to deal with any ex post facto
problem by declaring in the text of the statute that “[t]he provisions
of this subchapter codify offenses that have traditionally been triable
by military commissions. This chapter does not establish new crimes that
did not exist before its enactment, but rather codifies those crimes
for trial by military commission.” § 3(a), 120 Stat. at 2624. The Act
continued: “Because the provisions of this subchapter (including
provisions that incorporate definitions in other provisions of law) are
declarative of existing law, they do not preclude trial for crimes that
occurred before the date of the enactment of this chapter.”
Id.
[9]
As Congress well understood when it appended this unusual statement to
the statute, the U.S. Constitution bars Congress from enacting punitive
ex post facto laws.
See U.S. CONST. art. I, § 9, cl. 3
(“No Bill of Attainder or ex post facto Law shall be passed.”). Among
other things, the Ex Post Facto Clause bars laws that retroactively
punish conduct that was not previously prohibited, or that retroactively
increase punishment for already prohibited conduct.
See
Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990);
Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798)
(opinion of Chase, J.). The Ex Post Facto Clause thus prevents Congress
and the Executive from retroactively applying a federal criminal statute
to conduct committed before the statute was enacted.
As
Congress itself recognized in the statutory text, retroactive
prosecution by military commission could similarly raise serious
constitutional issues, at the very least. As stated in the statutory
text, however, Congress believed that the Act codified no new crimes and
thus posed no ex post facto problem. As we explain below, Congress's
premise was incorrect. The statute does codify some new war crimes,
including material support for terrorism. The question for ex post facto
purposes is this: If Congress had known that the Act was codifying some
new crimes, would Congress have wanted the new crimes to be enforced
retroactively? To begin with, the statutory text reveals a tight causal
link between (i) Congress's belief that the statute codified only crimes
under pre-existing law and (ii) Congress's statement that the statute
could therefore apply to conduct before enactment. That causal link
suggests that Congress would
not have wanted
new crimes to be applied retroactively. The Executive Branch
agrees with that interpretation of the statute, stating: “Congress
incorporated ex post facto principles into the terms of the MCA itself.”
Brief for the United States at 66. At a minimum, we know that the
statutory text does not contemplate or address the possibility of
retroactively applying new crimes, leaving us with at least something of
an ambiguity. And courts interpret ambiguous statutes to avoid serious
questions of unconstitutionality.
See
Rapanos v. United States, 547 U.S. 715, 738, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality opinion of Scalia, J.) (constitutional avoidance where statute “raises difficult questions” of constitutionality);
Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631, 646, 125 S.Ct. 1172, 161 L.Ed.2d 66 (2005)
(avoiding an interpretation that “may violate the Constitution”). 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.FN7
B
*8
Before enactment of the Military Commissions Act in 2006, U.S. military commissions could prosecute war crimes under 10 U.S.C. § 821
for violations of the “law of war.” The Government suggests that at the
time of Hamdan's conduct from 1996 to 2001, material support for
terrorism violated the “law of war” referenced in 10 U .S.C. § 821.
It is true that in the text of the Military Commissions Act of 2006,
Congress declared its belief that material support for terrorism was a
pre-existing crime under the law of war and thus under 10 U.S.C. § 821.
See § 3a, 120 Stat. at 2624. But exercising our independent
review, as we must when considering the ex post facto implications of a
new law,
see
Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798) (opinion of Chase, J.);
Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803), we conclude otherwise. Material support for terrorism was not a war crime under the law of war referenced in 10 U.S.C. § 821 at the time of Hamdan's conduct.
[10] [11] 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.FN8
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);
id. at 610 (analyzing international sources to determine whether conspiracy was “recognized violation of the law of war”);
id. at 641 (Kennedy, J., concurring) (“the law of war” referenced in 10 U.S.C. § 821
“derives from rules and precepts of the law of nations” and is “the
body of international law governing armed conflict”) (internal quotation
marks omitted);
Quirin, 317 U.S. at 29 (“law of war” referenced in 10 U.S.C. § 821 is a “branch of international law”);
id. at 27–28 (The “law of war” is “that part of the law of
nations which prescribes, for the conduct of war, the status, rights and
duties of enemy nations as well as of enemy individuals.”);
see also Instructions for the Government of Armies of the United
States in the Field (Lieber Code), General Orders No. 100, arts. 27
& 40 (Apr. 24, 1863) (describing the law of war as a “branch” of the
“law of nations”); O.L.C. Memorandum from Patrick F. Philbin to Alberto
R. Gonzales 5 (Nov. 6, 2001) (“laws of war” are “considered a part of
the ‘Law of Nations' ”);
id. at 29 (“the term ‘law of war’ used in 10 U.S.C. § 821 refers to the same body of international law now usually referred to as the ‘laws of armed conflict’ ”).FN9
We turn, then, to the question whether material support for terrorism is an international-law war crime.
[12] 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).
*9
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, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004).FN10
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.
*10
Commentators
on international law have similarly explained that material support for
terrorism is not an international-law war crime.
See, e.g., Andrea Bianchi & Yasmin Naqvi, International Humanitarian Law and Terrorism
244 (2011) (“there is little evidence” that a proscription of “material
support for terrorism” is “considered to be part of the laws and
customs of war”). Nor is the offense of material support for terrorism
listed in the JAG handbook on the law of war.
See U.S. Army Jag, Law of War Handbook (Maj. Keith E. Puls ed., 2005);
see also Jennifer K. Elsea,
The Military Commissions Act of 2006: Analysis of Procedural Rules
and Comparison with Previous DOD Rules and the Uniform Code of Military
Justice 12 (CRS, updated Sept. 27, 2007) (“defining as a war crime
the ‘material support for terrorism’ does not appear to be supported by
historical precedent”) (footnote omitted).
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.
Not
surprisingly, therefore, even the U.S. Government concedes in this case
that material support for terrorism is not a recognized
international-law war crime. No treaty that the Government has cited or
that we are aware of identifies material support for terrorism as a war
crime. And the Government further admits: The “offense of providing
material support to terrorism, like spying and aiding the enemy, has not
attained international recognition at this time as a violation of
customary international law.” Brief for the United States at 48;
see also
id. at 55–56 (same).
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.
And as the Government acknowledges, aiding and abetting terrorism
prohibits different conduct, imposes different mens rea requirements,
and entails different causation standards than material support for
terrorism. If the Government wanted to charge Hamdan with aiding and
abetting terrorism or some other war crime that was sufficiently rooted
in the international law of war (and thus covered by 10 U.S.C. § 821) at the time of Hamdan's conduct, it should have done so.
[13]
The Government latches on to a few isolated precedents from the Civil
War era to prop up its assertion that material support for terrorism was
a pre-existing war crime as of 2001 for purposes of 10 U.S.C. § 821. There are several independent reasons that those cases fail to support the Government's argument.
First, the Civil War cases did not involve any charges of
material support for terrorism. Instead, several cases involve guerillas
who were punished for taking up “arms” as “insurgents”—that is, for
direct attacks rather than material support.
See, e.g., G.O. No. 15, HQ, Dep't of the Mississippi (Apr. 3,
1862), 1 OR ser. II, at 472–76. Others were convicted of “joining,
aiding and assisting a band of robbers and bandits”—in other words, what
we would likely call aiding and abetting, not material support. G.O.
No. 19, HQ, Dep't of the Mississippi (Apr. 24, 1862), 1 OR ser. II, at
478. In short, those precedents are at best murky guidance here.
Cf.
Hamdan, 548 U.S. at 602 (plurality) (requiring “plain and unambiguous” precedent).
Second, those Civil War commissions were in part military
tribunals governing certain territory—which are a separate form of
military commission subject to a separate branch of law, and not the
kind of law-of-war military commission at issue here. As others have
suggested, their precedential value is therefore limited.
See
Hamdan, 548 U.S. at 596 n. 27;
id. at 608 (plurality) (The “military commissions convened
during the Civil War functioned at once as martial law or military
government tribunals and as law-of-war commissions. Accordingly, they
regularly tried war crimes and ordinary crimes together.”) (citation
omitted).
Third, and perhaps most to the point, those cases do not
establish that material support for terrorism was a war crime recognized
under
international law as of 1996 to 2001 when Hamdan committed his conduct, which is the relevant inquiry under 10 U.S.C. § 821.
The Government contends that those Civil War precedents illuminate what
it calls the “U.S. common law of war”—not the international law of war.
But the statutory constraint here imposed by 10 U.S.C. § 821 is the international law of war. As the Government told the Supreme Court in
Quirin, “This ‘common law of war’ is a centuries-old body of largely unwritten rules and principles of
international law which governs the behavior of both soldiers and civilians during time of war.” Brief for the United States at 29, in
Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (emphasis added)
(citation omitted). To be sure, U.S. precedents may inform the content
of international law. But those Civil War precedents fail to establish
material support for terrorism as a war crime under the international
law of war as of 1996 to 2001. And even the Government admits that
material support for terrorism was not an international-law war crime as
of 1996 to 2001.
*11
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.
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