The Govenrment's Strange Motions for Reconsideration in Hamdan and Khadr

Marty Lederman

The government has filed motions for reconsideration of the military commissions judges' recent decisions that the Pentagon has failed to satisfy its burden of establishing jurisdiction over the defendants in the Hamdan and Khadr cases.

I've only had time to quickly peruse the Hamdan motion. The Khadr motion is here. (Thanks to Lyle for the links.)

The motion asks Judge Allred to either defer to an supposed finding of the CSRT that Hamdan is an unlawful enemy combatant, or to make such a finding himself. The oddest thing about the Hamdan motion, however, is that the government never really gives a persuasive factual account of why Hamdan is an enemy combatant, let alone an "unlawful enemy combatant" as that term is defined in the MCA.

The MCA defines "unlawful enemy combatant" as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." 10 U.S.C. 948a(1)(A)(i).

The government appears to make at least four arguments about why this standard is satisfied in Hamdan's case.

First, the government argues (pp. 8-9) that "the MCA recognizes that being a 'part of the Taliban, al Qaeda, or associated forces'--without more -- qualifies a person for 'unlawful combatant status." (Government's emphasis.)

I think this is simply wrong -- the statute can't fairly be read to establish such an irrebutable preumption, and it would have been unreasonable for Congress to create such a presumption. Obviously, it is not the case that anyone who is, e.g., part of forces "associated with Al Qaeda," or anyone who is "part of" Al Qaeda itself (whatever that means) has thereby and "without more" "purposefully and materially supported hostilities against the United States or its co-belligerents."


Second, the government argues (pp. 6-7) that Congress intended that a prior CSRT finding of "enemy combatant" status would automatically establish unlawful combatant status.

But the definition the CSRTs used to determine combatancy status was simply "an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." To be sure, that definition expressly "include[d]" any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces"; but it was not limited to such persons. And indeed, the proof of this is that it is not at all clear that Hamdan himself directly supported hostilities in aid of enemy armed forces -- and yet the CSRT deemed him an enemy combatant.

That is to say, the CSRT's finding of "enemy combatant" status did not necessarily include a finding that the person "has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents," as the MCA appears to require for unlawful combatant status.

Third, the government argues (p.8), as it did last week before Judge Allred, that unlawful combatant status can be recognized by viewing the CSRT finding conjoined with the President's findings as to Al Qaeda.

But as the government's motion itself points out, the President merely found that members of Al Qaeda did not qualify for POW status under Article 4 of the Third Geneva Convention. Even if the military commissions should defer to a categorical, non-individualized determination such as that -- something that Judge Allred pointedly questioned -- the President's finding that Al Qaeda members (which might include Hamdan) are not entitled to POW status simply doesn't speak to the question of whether they are combatants, let alone whether they are "unlawful" combatants under the terms of the MCA.

Fourth, and most importantly (it actually comes first in the motion -- p.3), the government sets out the facts from which Judge Allred is urged to make his own finding that Hamdan is an unlawful enemy combatant. The alleged facts are these:

Hamdan served as Bin Laden's personal driver and as a "member" of bin Laden's body guard detatchment;

Hamdan "armed himself with a weapon";

and

Hamdan "was captured by Northern Alliance forces in the vicinity of Kandahar in possession of a weapon."

That's it.

It's not at all clear that such conduct described anything unlawful at the time it is alleged to have occurred. (Subsequent to the conduct, Congress passed a law making it unlawful to provide personal services to a terrorist organization; but I don't believe that was an operative crime at the time.)

More to the point, as I read it, those alleged facts simply do not establish, as the MCA requires, that Hamdan "purposefuly and materially supported hostilities against the United States."

Here's the simple question the motion for reconsideration conspicuously fails to answer: What, exactly, is it that Hamdan is alleged to have done that proves he "purposefully and materially supported hostilities against the United States or its co-belligerents"? I don't know whether Hamdan did or did not do so. But if this is the best the government can do to make that case . . .
Posted 2:06 PM by Marty Lederman [link]