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

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.

* * * *

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]

Comments:

Prof. 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.

Good thing we don't have a prohibition against ex post facto law in the Constitution. Oh ... wait ....

Cheers,

# posted by

Arne Langsetmo : 3:48 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 3:58 PM

From Judge Allred's decision on the ex post facto motion, quoting Justice Kennedy from Hamdan:

"Congress, not the Court, is the branch in the better position to undertake the sensitive task" of determining whether conspiracy is a war crime.

Can this be right? Is not a "war crime" something that is against the "law of war" (as opposed to a statutory violation of U.S. law)?

If so, how can Congress unilaterally (re)define what the "law of law" is, that is, the "universal agreement and practice" of all nations?

Aren't the courts the finders of fact and the judges of law?

Judge Allred takes into account the Constitutional provision that gives power to Congress to "define" offences against the "law of nations", and says that this allows for Congress to take the lead -- in the absence of "universal agreement and practice" -- as to what acts are unlawful, and to specify what such offences are. But if Congress has the power to "define" such (in particular, by passing laws criminalising said acts), and not simply recognising "universal agreement and practice", aren't they then making new law? If such, then why doesn't the ex post facto clause come into play?

Cheers,

# posted by

Arne Langsetmo : 4:42 PM

Judge Allred quotes Anthony Colangelo for support of his decision:

"[W]e might assume ... that Congress, representing the United States' sovereign lawmaking body within the international system, has at least some leeway to aid in the development of the category of international offenses by pushing the envelope beyond where it already is."

IOW, making new law.

Cheers,

# posted by

Arne Langsetmo : 4:48 PM

Don't be silly, Arne. I looked up Marbury v. Madison, and it says,

It is emphatically the duty of the Judicial Department to say what the law is, except as regards unlawful enemy combatants as those are designated by the Commander-in-Chief.

Go look up the opinion on Bartlaw yourself, if you don't believe me.

# posted by

Anderson : 4:52 PM

Terrorism in the form of piracy and brigandage has been internationally recognized as a malum in se war crime since at least Roman times, whose perpetrators withdrew themselves from the realm of humanity and could be warred upon and summarily killed by all peoples without fear of "punishment nor moral anguish." Mikkel Thorup provides some of the numerous authorities for this proposiiton in a talk entitled "The horror of the ’enemy of humanity’ – on pirates, terrorists and states" which he delivered at Mansfield College, Oxford last year.

Lincoln codified this millennium old common law of war to Confederate terrorists/brigands in Section IV of his General Orders No. 100, prescribing execution for these marauders.

Moreover, Anglo American criminal common law included the concept of accomplice liability in the form of "principles in the second degree" and "accessories before the fact" - accomplices providing aid to the principle who were and were not present at the crime, respectively.

Hamdan's military prosecutors were quite correct to note that common law accomplice liability was applied to the supporters of Confederate brigands pursuant to General Orders 100 during the Civil War. Judge Allred recognized this authority in pages 3-5 of his order holding that the crime of "material support for terrorism" is simply a codification of previously outlawed conduct.

In contrast, Hamdan's defense ignores this millennium long history of the law of war and simply cites to a 2007 UN document.

This argument is not even close.

# posted by

Bart DePalma : 5:22 PM

"Dies Irae dies illa..."

This is for me an immensely sad day.

The United States of America, the nation which in 1945 pressed for a proper tribunal with proper guarantees for the rights of the accused, has today descended into the slime of kangaroo courts dispensing 'victor's justice'.

As a lawyer, with some experience, and as a European Muslim with some idea of how my brothers and sisters will react around the world, I can positively assure all readers that this is the equivalent of the United States of America shooting itself in the foot.

The Arabic language web sites are already buzzing. The words are "Crusader justice".

I am someone who has spent his working life saying to people in other countries that the Anglo-Norman judicial system (which the USA and the United Kingdom share) is a model to which other countries should aspire. This makes today a black day indeed.

I am also sorry to have to note that officers of the armed forces of the United States constituted the "jury" and that members of the several JAG Corps of the services participated in this charade as military judges and prosecutors.

Were your commissions worth more than your honour, ladies and gentlemen ?

# posted by

Mourad : 5:38 PM

mourad:

The military commission system, which properly convicted Mr. Hamdan of only those charges which were supported by the evidence, compares rather favorably to any Arab judicial system you care to name.

Our honor is intact and justice was done.

# posted by

Bart DePalma : 5:52 PM

Bart:-

Since you are a loathsome spotted reptile, I fully expect you to be breaking out the champagne or whatever it is reptiles like you drink on festive occasions.

I shan't bother to ask you how many "Arab judicial systems" you have practised before because I know the answer already: none. You are not even competent to have a respectable law office in your own country, so how could one expect you to have any worthwhile multi-jurisdictional experience.

"Honour". Do you think that these kangaroo courts will redound to the "honour" of the United States ? Watch the press, the TV, the law journals in the rest of the world over the next few days.

ego vos edicabo et irrumabo, Bart, pathice et cinaede

# posted by

Mourad : 6:40 PM

"to avoid attaching this stigma to fellow Americans" Violations of the laws of war are not necessarily war crimes, and no stigma attaches. We know from Quirin that a soldier who dresses in civilian clothes and passes through lines of defense commits an offense against the laws of war and can be tried by a military commission. One person who committed this offense and payed the ultimate price was Captain Nathan Hale.

Over two hundred grade schools in the US are named for Nathan Hale. Dozens of towns in Connecticut have a statue of him, and another statue is found outside CIA headquarters. This simply shows that there are certain violations of the laws of war to which no stigma applies.

A real war criminal commits morally repugnant acts and may be wanted by international courts and prosecuted in many countries. The offense against the laws of war committed by a spy has a very limited scope. It only applies to the spy himself, may only be charged directly by the enemy military, and the charge only exists if he is apprehended in the act of spying. His commander cannot be charged with any offense even when he orders the mission. Once the spy returns back through lines of defense and rejoins his army, he can never be prosecuted for his offense even if subsequently captured as a POW.

Thus some violations of the laws of war that can be tried through Military Commissions are honorable acts to which no stigma applies, and not only are they immune from extradition, but they can never be charged in any way after the mission is complete.

Providing anti-aircraft missiles to insurgents across a boarder, whether done in Vietnam or Afghanistan, by the Russians, the CIA, or al Qaeda obviously falls somewhere in the middle. It is not a war crime subject to international jurisdiction or stigma. The scope of jurisdiction does not apply in this case because Hamdan was caught in the act with missiles in the back of his car. So if there is an offense to charge, Hamdan can be charged as a result of his capture. However, Hamdan was not charged in this case with any offense based on this conduct for which he could be found guilty.

# posted by

HowardGilbert : 6:49 PM

Mikkel Thorup provides some of the numerous authorities for this proposiiton in a talk entitled "The horror of the ’enemy of humanity’ – on pirates, terrorists and states" which he delivered at Mansfield College, Oxford last year.

Pirates have no friends (except maybe Pastafarians). OTOH, one man's "terrorist" is another man's "freedom fighter". See "Reagan and Afghanistan". Or "Nicaragua". Or "El Salvador". Or "Angola". Or "Kennedy" and "Bay of Pigs" (with a bonus for "Orlando Bosch").

The lines get fuzzy, and the acts committed, in and of themselves, are not sufficient to clearly distinguish the two. Had the U.S. pursued a less "nuanced" appproach to terrorism over the years, they might have more authority to decide who is a terrorist and who is not ... and have others agree with their assessment.

Cheers,

# posted by

Arne Langsetmo : 7:25 PM

ego vos edicabo et irrumabo, Bart, pathice et cinaede

Heh. Some of us read Latin. Is that a line from Catullus, or did you, um, compose it yourself?

# posted by

Mark Field : 7:48 PM

Mark - it is indeed part of a line from Catullus - I did not want to use the Anglo-Saxon on a web site.

Bart has been to school. I'm sure he will get my drift.

# posted by

Mourad : 7:54 PM

Howard Gilbert:

Providing anti-aircraft missiles to insurgents across a boarder, whether done in Vietnam or Afghanistan, by the Russians, the CIA, or al Qaeda obviously falls somewhere in the middle. It is not a war crime subject to international jurisdiction or stigma. The scope of jurisdiction does not apply in this case because Hamdan was caught in the act with missiles in the back of his car. So if there is an offense to charge, Hamdan can be charged as a result of his capture. However, Hamdan was not charged in this case with any offense based on this conduct for which he could be found guilty.

He was not convicted of the crime of carrying the missiles (with intent or in conspiracy to kill U.S. service members). But he was charged with such (see first part of the charge specifications). The difficulty here is basically that attacking the "enemy" military is not a war crime or even against the law of war (something that the U.S. should appreciate and, had they convicted Hamdan of these charges, something that they might eventually rue).

Cheers,

# posted by

Arne Langsetmo : 8:11 PM

Mourad:

Is that your suggestion for Mr. Hamdan's sentence or a personal fantasy?

In either case, please keep it at home.

# posted by

Bart DePalma : 8:12 PM

This comment has been removed by the author.

# posted by

Mourad : 8:40 PM

Bart:

If you know what it means, please recall than the record shows that it is more than possible that Mr Hamdan was abused in that and many other ways before he appeared before the kangaroo court which convicted him.

Which is perhaps why the US$ 300 that Captin Allred is shown as having donated to a Republican candidate might have been better spent on some basic texts on the exclusion of evidence obtained by torture and inhuman and degrading treatment.

See: S v Mthembu (379/07) [2008] ZASCA 51 (10 April 2008)

# posted by

Mourad : 8:47 PM

David Glazier wrote:

"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 [sic] in Afghanistan during the Soviet Afghan war are war criminals."

Well, the history of both the Vietnam War (or the war in Southeast Asia as a whole), and the intervention in support of Islamic terrorists against the legitimate state of Afghanistan in the 1980s shows that many of these people and their actions were engaged in war crimes (torture, summary execution, illegal military action, false flag operations, etc.). The U.S. regularly engages in irregular and secret warfare, usually by CIA and/or Special Forces. Hamdan's crimes, whatever they were, are a pittance placed next to those that led to the death of millions from Cambodia/Laos/Vietnam to Indonesia, Chile, and El Salvador, to name only a few instances of U.S. aggression against other states.

None of this alibis the use of terror, which is a counterproductive technique, rendering the population passive against democratic political action, and stimulating repressive responses that hurt the innocent, oppressed people the terrorist group purportedly represent. Additionally, terror groups are vulnerable to being used by larger state entities, whether via agents provocateur, or through utilization of terrorist action to justify (as in the current case of the United States) more interventions abroad and curtailment of liberties at home.

# posted by

Valtin : 9:25 PM

The respected, including in these parts, colonel who resigend argued that Hamdan was obvious guilty (if the process was in place to fairly convict, well, different story) in part based on a surface to air weapon in his vehicle.

Apparently, including one AP story that notes there was some problem supplying a good id of Hamdan in this context, things weren't so obvious. The fact he was declared not guilty in part suggests some shred of due process.

OTOH, the 'war crime' issue (raised in the Supreme Court ruling, though only the plurality focused on it) etc. suggests the problems. Still, there was a head's we win, tails you lose flavor here. If 'not guilty,' he still would be detained indefinitely.

This was just a show trial of sorts to establish a precedent.

# posted by

Joe : 10:04 PM

"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."

Of course, though some might wish to elide past the matter, confinement and a label as a conficted war criminal ... two different things.

# posted by

Joe : 10:08 PM

Arne:

This was where the administration really, really screwed up. In the MCA they created an offense called "attempted murder in violation of the laws of war" and then, when they wanted to charge Hamdan with carrying the weapons, they charged him with that specific offense.

When a soldier targets and kills civilians then that is a murder that is explicitly in violation of the laws of war. When a man kills his wife, or when a civilian kills a soldier, that is simple "murder". It is in violation of civilian law, and maybe martial law, but not of the laws of war. Nothing civilians do, legal or illegal, has anything to do with the laws of war.

A soldier has combatant privilege and can kill another soldier in combat legally. A civilian doesn't have privilege. However, "murder by an unprivileged belligerent not permitted to engage in combat under the laws of war" is not the same thing as "murder in violation of the laws of war". That charge is "murder", and the rest about unprivileged belligerency is simply an argument why an obvious affirmative defense does not excuse the crime.

Yet the MCA defined the charge, the government put it on the charge sheet, and then at the end of the trial the military judge had to figure out what to do. He decided that the only thing that "murder in violation of the laws of war" could possibly mean under the actual laws of war was killing of civilians by soldiers (or maybe by unprivileged belligerents also), because that is the only type of murder that is actually prohibited by the laws of war.

So then he instructed the jury that Hamdan could only be convicted of "attempted murder in violation of the laws of war" if they found that the anti-aircraft missiles he was carrying were going to be used against civilians. Despite a few Vin Diesel movies, anti-aircraft missiles are not really good weapons against someone on the ground, and at the time there were no commercial planes flying around Afghanistan.

So he was found innocent of that charge, and given the judge's reading of the law, which was the only reading that could ever make sense, there was no way he could ever have been convicted. So I stick by my claim that "Hamdan was not charged in this case with any offense based on this conduct for which he could be found guilty." There may have been other charges for which he could have been convicted, but they did not appear on the government charging sheet.

# posted by

HowardGilbert : 10:51 PM

With respect to all, the issue is the old one of due process.

In the UK we prosecute and jail terrorists and those who provide support to terrorists as criminals and, if the jury finds them guilty lock them up for a substantial period of time.

This was not a trial with due process but, as an earlier poster has rightly said, a "show trial". Show trials are what totalitarian régimes do - not democracies.

If we cannot demonstrate to those inclined to the ideologies we are combatting that there is a morally better way - then why should they desist?

Some people appear to have forgotten the impact of the Nuremberg trials on Nazi sympathisers. They were amazed that the victors would behave so properly. That contributed greatly to the successful de-nazification of Germany.

But what we have had here was an empty charade - a 'made in Hollywood' film set with all the visual trappings of a fair trial, but with the substance and the rules perverted.

That brings the institutions of justice into disrepute, which is why I maintain that the legal professionals who participated should have resigned rather than collaborate.

I use the term "collaborate" advisedly in the same sense as the French use it for those who acted as judges and prosecutors in Vichy France.

Our adversaries in this struggle are not stupid - numbers of them are very intelligent indeed. And the Bush Administration has just handed them a great big propaganda victory.

That is perhaps why the comments posted to the NYT report of the verdict seem to be critical by a margin of about 10 to 1.

So perhaps the US public has not been not fooled by the Guantanamo Charades either.

# posted by

Mourad : 5:39 AM

Mourad:

The Gitmo trial of Hamdan granted him far more rights than Nuremberg granted to the Nazis. Thus, if you believe that Nuremberg was an inspiring example of how we should treat war criminals, you should be delirious in your praise of the military commission trial provided for Hamdan.

As to offering alternatives to those disposed to assist the enemy, I would personally rather be tried under by a US military tribunal than any of the Muslim countries who are providing recruits to al Qeada. Yesterday, you tellingly declined to name a single Arab country which would have provided superior due process to the military commission provided to Hamdan.

The propaganda victory the enemy is receiving is being provided by those such as yourself who through intent or ignorance are misrepresenting and slandering the military commission process.

# posted by

Bart DePalma : 9:50 AM

"Bart" DeObtuse:

The Gitmo trial of Hamdan granted him far more rights than Nuremberg granted to the Nazis.

I've already critiqued this claim of "Bart"'s here (and below in the thread); no need to go over it again on this thread. I'll just say "asked and answered".

My comparisons of Guantánamo with Nürnberg are here and here. Something that "Bart" has completely ignored.

And a FYI: Repetition does not make a lie any more truthful, despite the claim of Goebbels and other intellectual luminaries of the RW to that effect.

Cheers,

# posted by

Arne Langsetmo : 1:15 PM

If it is a war crime for non-uniformed personnel to deliver weapons to the battlefield, then aren't all those civilian contractors in Iraq war criminals?

# posted by

Bill : 4:10 PM

billposer:

If it is a war crime for non-uniformed personnel to deliver weapons to the battlefield, then aren't all those civilian contractors in Iraq war criminals?

It's a crime to deliver them to Terra-ist organisations. What is a "Terra-ist organisation"? Why, one that Dubya designates as such. Don't worry; he won't name the CIA, riding around on horseback and in civvies. OTOH, killing such a CIA agent is a Terra-istic act and prosecuted as murder (even if you were just involuntarily in the same room when the killing took place...)

Cheers,

# posted by

Arne Langsetmo : 5:11 PM

it' a sham proceeding ..and another blotch upon the fabric of what was once our honor among nations .. imo ..

and for those who might object to that sentiment ... i'd add there is no honour in defending the indefensible ..

as a non-lawyer i'm still confused as to how this passes muster with the constitutional prohibition concerning ex-post-facto ..

well .. no .. i'm not really confused on the issue .. i am more disappointed and dismayed that such an obvious transgression against the prohibition ..and it's results and application can be so dogmatically defended by political hacks pretending to be acolytes of "the law" ..

i'm rather weary of a certain collective of political ptractioners besmirching this nation's heritage for short term political expediency ..they are become a great embarassment to this once stalwart homeland of mine ..

# posted by

Jkat : 9:35 PM