Terrorism/War crimes

• Pages: 12-14

12 Volume 19, January–March 2013 international law update

© 2013 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

TERRORISM/

WAR CRIMES

U.S. Court of Appeals for the District

of Columbia Circuit reverses conviction

of driver and bodyguard of Osama

bin Laden because (1) the Military

Commissions Act does not retroactively

punish new crimes, and (2) “material

support for terrorism” was not a pre-

existing war crime under 10 U.S.C.

Section 821

e following case (again) raises important

questions about the scope of the Executive’s authority

to prosecute war crimes.

Salim Ahmed Hamdan, originally from Yemen,

was Osama bin Laden’s driver and bodyguard. He

was captured in Afghanistan in November 2001 and

transferred to Guantanamo Bay, Cuba. A military

commission convicted him of “material support for

terrorism” [see Military Commissions Act, 10 U.S.C.

Section 950t(25)]. However, Hamdan’s conviction

was based on his actions during the years 1996-

2001, which preceded the enactment of the Military

Commissions Act. At the time that Hamdan served

Osama bin Laden, a military commission could

pursue only violations of the “law of war” (10 U.S.C.

Section 821).

In 2006, the matter came before the U.S.

Supreme Court, which held that the military

commission rules then in place contravened the

statutory limits because they did not fully comply

with statutory restrictions in 10 U.S.C. Section

836. See Hamdan v. Rumsfeld, 548 U.S. 557, 613-

35 (2006). e Supreme Court, however, did not

decide whether conspiracy was a cognizable charge

in a military commission under the “law of war” for

purposes of 10 U.S.C. Section 821. After Hamdan,

Congress enacted a new military commissions statute.

See Military Commissions Act of 2006, Pub.L. No.

109-366, 120 Stat. 2600. [NOTE: Congress enacted

a new Military Commissions Act in 2009, Pub.L. No.

111-84, 123 Stat. 2574, but the changes therein are

not relevant to the present case.] In there, Congress

expanded military commissions beyond prosecuting

violations of the generic “law of war.” In particular,

for the phrase “law of war,” Congress listed specic

war crimes that could be charged by military

commission, including conspiracy and material

support for terrorism.

Hamdan was charged anew after passage of the

2006 Military Commissions Act, and convicted of

ve instances of material support for terrorism. In

August 2008, Hamdan was sentenced to 66 months’

imprisonment and released in late 2008. Hamdan

appealed his conviction.

e U.S. Court of Appeals for the District of

Columbia Circuit now reverses Hamdan’s conviction

by the Court of Military Commission Review,

and directs that Hamdan’s conviction for material

support for terrorism be vacated. e reasons

include: (1) the Military Commissions Act does not

retroactively punish new crimes, and (2) “material

support for terrorism” was not a pre-existing war

crime under 10 U.S.C. Section 821.

As a preliminary matter, the Court notes that

this is a direct appeal of a conviction, thus it is

not mooted by Hamdan’s release. e Court then

addresses Hamdan’s arguments.

“Hamdan argues that Congress lacked authority

under Article I of the Constitution—namely, the

Dene and Punish Clause—to dene material

support for terrorism as a war crime subject to trial

by a U.S. military commission. Hamdan maintains

that Congress’s authority under the Dene and

Punish Clause is limited to proscribing oenses

that are already illegal under international law.

And Hamdan contends that material support for

terrorism is not a recognized international-law war

crime. […]

“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, 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 eect at