What Are the "War Crimes" For Which Hamdan Was Convicted?

Marty Lederman

A military tribunal today convicted Salim Hamdan of five of the ten charges against him, and acquitted him on the other five. All of the convictions were for "Material Support for Terrorism," an offense Congress declared to be a war crime in the MCA.

The charges for which he was convicted were Specification 2 on page 7 of the charge sheet, and Specifications 5 through 8 on page 9.

As you will see, the thrust of the latter four charges is that, from 1996 until November 24, 2001, Hamdan provided transportation and "body guard" services for bin Laden and others, knowing and intending that such services would "directly" facilitate "communication and planning used for acts of terrorism." Specification 2 accused Hamdan of providing such services in order to support al Qaeda as an organization, rather than to support acts of terrorism in particular.

Under current U.S. domestic law, this alleged conduct would be a crime. Between 1996 and late 2001, however, such conduct was probably not criminal under U.S. domestic law. In any event, Hamdan was not tried for violating U.S. domestic law -- he was convicted for violating an alleged law of war.

This raises at least two huge legal questions. First, the charges themselves require that there have been an "armed conflict" during the period in question -- and the laws of war only permit trial of offenses committed within the period of an armed conflict. It's not clear which, if any, of Hamdan's alleged acts occurred after September 11, 2001 -- and it also is uncertain whether the conflict that triggers the laws of armed conflict commenced before 9/11/01, when al Qaeda engaged in other terrorist acts against the U.S. Four Justices in Hamdan thought the armed conflict did not begin until September 2001 (see note 31 of the Stevens opinion); but it remains an unresolved question.

Second, it is not clear that Hamdan's conduct of "material support" to terrorism (and, in Specification 2, to al Qaeda), in the form of of transportation and "body guard" services, was conduct that violated the laws of war in the period from 1996 to 2001. Judge Allred ruled (see page 2 here) that if such conduct was not a war crime at the relevant time, then Congress is barred by the Ex post Facto Clause from designating such conduct as a war crime after the fact. Were these forms of "material support" to terrorist acts -- or, even more broadly,to an organization that commits terrorist acts (Specification 2) -- a violation of the laws of war between 1996 and 2001? A very interesting and important question. See pages 3-6 of Judge Allred's opinion, in which he holds that even though there is no recognition of such a war crime in any international instruments, or U.S. field manuals, and even though the Congressional Research Service found no historical support for it, there is some evidence of similar "support" conduct being tried by military tribunals in the Civil War, and thus it was within Congress's broad authority under the Law of Nations Clause to determine that such conduct was a war crime when Hamdan acted. Whether that holding is correct will be a major issue on appeal.

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Perhaps even more important are the charges on which Hamdan was acquitted, at least three of which deal with the allegation that he was delivering surface-to-air missiles to the Taliban in Afghanistan. [UPDATE: Senator McCain today said in response to the verdict that "[t]he jury found that the prosecution lawyers had proven, beyond a reasonable doubt, that Hamdan had aided terrorists by supplying weapons to Al Qaeda and Taliban forces in Afghanistan." I don't think that's right. Hamdan was acquitted on the charges relating to the provision of weapons. Although supplying weapons in theory could have been the basis for the guilty verdict on the second material-support charge, the jurors did not specify the acts supporting that verdict, and it is fairly plain from the remaining verdicts, including the acquittals on those charges specifically dependent on allegations of providing weapons, that the basis for the verdict of guilt was Hamdan's conduct as driver and body guard, not his supplying of any weapons to al Qaeda and the Taliban.]

Now, if Hamdan had delivered such weapons to a battle zone, that would probably make him detainable. But what's the theory under which it is a war crime? The government's argument is that any attempt, like this one, to aid in the killing of U.S. forces on a battlefield is a violation of the laws of armed conflict if it is committed by an unprivileged combatant, i.e., a nonuniformed person.

This is a fairly radical theory -- that any belligerency by nonprivileged persons is itself a war crime. If I'm not mistaken, it would mean that CIA officials and many U.S. Special Forces are not only regularly violating the domestic laws of the nations where they operate, but are committing war crimes. Can that be right? Kevin Heller doesn't think so. Yet that is the basis of many of the war crimes charges the Pentagon has brought against other detainees. Judge Allred's charge to the jury in the Hamdan case failed to reflect the government's broad theory, and the jury acquitted Hamdan of the charges as they were specified by Judge Allred. The answer to this important question, then, apparently will have to await another case.

UPDATE: See also this terrific, comprehensive post by David Glazier. A sample:

The judge's instructions to the trial panel, which failed to state that delivering missiles to be used against military forces constitutes a war crime also ultimately works to government advantage in my view. If the government had prevailed on this point, it means that everyone from Ronald Reagan to Charlie Wilson, to my colleagues at the Pentagon during my service in the South East Asia branch of the Joint Chiefs of Staff in 1984-85, to the CIA folks involved in supporting the Mujahidin in Afghanistan during the Soviet Afghan war are war criminals. While U.S. prosecutions for such conduct are obviously unlikely, such an outcome could have consequences from emboldening nations like Russia to press charges to the more mundane but perhaps real possibility that they might persuade some U.S. judges to overturn the conviction to avoid attaching this stigma to fellow Americans.

Overall I think the most positive thing about the verdict is that six anonymous military officers engaged in mature consideration of how to apply the law as it was given to them to the facts that they were presented. Whatever flaws exist in the system, it is not fair to pin it on these individuals, and I believe this highlights that had the government conducted the CSRT process in good faith and made a real effort to present all available information to the participants in those panels, a good deal of the subsequent controversy over Guantanamo could have been avoided. Whether Hamdan should ultimately have been convicted or not, there does seem to be sufficient information in the public record to justify his indefinite detention as a member of a force hostile to the United States engaged in a conflict against it.

Posted 1:13 PM by Marty Lederman [link]