an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Hamdan and the Continuing Quandary of Military Commissions
The D.C. Circuit yesterday unanimously reversed the military conviction of Salim Hamdan for material support for terrorism (MST). The opinion highlights the continuing problems surrounding Guantanamo military commissions, more than a decade after their creation.
Writing for the panel, Judge Brett Kavanaugh concluded that MST was not a violation of the law of war at the time Hamdan provided the support to al Qaeda (between 1996 and 2001). While the Military Commissions Act of 2006 (MCA) made MST a crime prosecutable by military commission, it did not authorize retroactive punishment (and to conclude otherwise, the panel said, would raise constitutional problems under the Ex Post Facto Clause). The commission thus could not properly try Hamdan for MST (the only offense of which he was convicted).
Over at Lawfare, Steve Vladeck offers some excellent insights about Hamdan's potential impact on other commission prosecutions, particularly that of Ali al-Bahlul, whose appeal is pending before the D.C. Circuit. As Steve notes, the panel's requirement that there be a firmly grounded customary international law rule defining the specified conduct as criminal could spell trouble for Al-Bahlul's conspiracy conviction. (Recall that in 2006 a plurality of the Supreme Court concluded that conspiracy was not a law-of-war violation triable by military commission in the first incarnation of Hamdan's case invalidating the pre-MCA commissions).
More broadly, Hamdan is likely to impact the ongoing debate over whether to prosecute terrorism suspects in military commissions rather than federal courts. Proponents of using federal courts--and I include myself in that group--will seize upon Hamdan as further evidence of the U.S. government's misguided effort to use military commissions instead of Article III courts which routinely prosecute suspects for MST. One wrinkle is that it is unclear whether Hamdan could have been charged in federal court with MST because Congress did not explicitly give the federal MST statute extraterritorial effect until after Hamdan had engaged in the conduct in question. The same, moreover, applies to most other Guantanamo detainees who could potentially be charged with MST for such conduct as attending an al Qaeda training camp since their alleged material support typically pre-dates Congress's amendment to the federal MST statute.
Yet, even if the federal MST statute were unavailable to prosecute individuals like Hamdan in federal court, that does not justify creating an alternative forum--a shadow court system--to prosecute conduct that was not criminal at the time. Further, the original impetus behind military commission was not to fill perceived gaps in existing federal criminal jurisdiction but to evade due process guarantees, to ensure convictions, and to conceal evidence of torture and other mistreatment. As the Supreme Court indicated in its 2006 Hamdan decision, circumvention of established norms and procedures is not a proper use of military commissions.
The important question remains whether the government can use a MST charge to prosecute post-2006 conduct in a military commission. If so, it makes military commissions a more viable forum for future terrorism cases beyond the existing Guantanamo detainee population. That question turns on whether, as Hamdan argued, the Constitution prevents Congress from defining as a war crime prosecutable by military commission an offense not recognized as a violation of international law. The D.C. Circuit declined to decide that issue (although Judge Kavanaugh, writing for himself, said Congress has that authority). Hamdanhighlights the perils of using military commissions for future cases. It serves as a reminder that even the most basic issues--here, whether Congress can constitutionally prosecute MST as a war crime--remain highly contested. This uncertainty suggests that terrorism prosecutions will remain engulfed by controversy if they are conducted in military commissions rather than federal courts.