UPDATE Wednesday 10:40 a.m. Picking up on a government suggestion that the case of Hamdan v. United States may be moot, the D.C. Circuit Court has told lawyers appearing at the Thursday morning hearing to be prepared to argue whether the detainee’s release and completion of his war crimes sentence means the case is no longer a live controversy, and thus a court would have no power to decide it. The Circuit Court’s notice order is here. This post also has been updated to further describe the Justice Department’s arguments, in response to a complaint from a former Obama Administration official.
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Congress’s creation of a system of military commissions to try war crimes charges — an effort that followed the Supreme Court ruling striking down a system set up by presidential order — gets its first test in a civilian court on Thursday morning as the D.C. Circuit Court reviews the first conviction to emerge from a commission at Guantanamo Bay. Ironically, and merely by coincidence, the challenge is being made by the same Yemeni national who won the Supreme Court case in 2006 against the prior system — Salim Ahmed Hamdan.
If Hamdan were to succeed again, his case could bar all military commission trials, including the high-profile case against five individuals accused of plotting the 9/11 terrorist attacks on the U.S., and force Congress to try again. Under current federal law, no one held at Guantanamo Bay can be tried anywhere except in a military tribunal. But if Hamdan’s challenge succeeded only partly, that could take away the military’s authority to use the most frequent charge leveled in commission cases at Guantanamo. Thus the stakes are high, and that adds to the prospect that his case ultimately will go on to the Supreme Court for final resolution.
His case also could settle whether the Supreme Court’s most important ruling so far on detainee rights — the 2008 decision in Boumediene v. Bush — can be used as the basis for recognizing constitutional rights for foreign nationals prosecuted by the U.S. military. Boumediene explicitly created a constitutional right to challenge detention at Guantanamo and did not deal directly with any issues of war crimes prosecution.
Hamdan’s constitutional and other challenges were rejected last June by the U.S. Court of Military Commission Review — a tribunal set up by Congress to hear appeals of convictions by the military commissions created under a 2006 federal law (and somewhat modified by a 2009 law). From that court, further review moves first to the D.C. Circuit, a civilian court, and then on perhaps to the Supreme Court, if the Justices grant review. (The CMCR decision can be read here; a post on this blog discussing that ruling is here.)
Hamdan is back in Yemen, and has been released after serving a sentence of 66 months imposed after a military commission found him guilty of providing “material support for terrorism.” He was described by military prosecutors as a driver and trusted aide to the late al Qaeda leader, Osama bin Laden, in Afghanistan. He was captured in Afghanistan in November 2001, and spent more than six years as a detainee at a U.S. air base in Afghanistan and at Guantanamo Bay before being sent to Yemen following his conviction in August 2008. Yemeni authorities released him in January 2009. His legal challenge is being carried on by his American lawyers.
His case has drawn a panel of three conservative members of the D.C. Circuit: Chief Judge David B. Sentelle, Senior Circuit Judge Douglas H. Ginsburg and Circuit Judge Brett M. Kavanaugh. They are scheduled to hold a 40-minute hearing Thursday, sometime after 9:30 a.m., with attorneys for Hamdan and for the Justice Department allotted 20 minutes each.
Hamdan’s case raises three questions. Here, in paraphrase, are the claims and the implications if each were to succeed:
First, the broadest claim is an argument that the entire military system is unconstitutional because it allows prosecutions only of non-citizens, and that violates the Constitution’s Fifth Amendment guarantee of equal protecti0n of the law. This depends upon a finding that the equal protection guarantee does apply to foreign nationals faced with war crimes charges. If that claim wins, no military commission would be legal, all prior convictions would be overturned, and no new trials could be held by a commission unless Congress were to create a new system reaching citizens, too.
Second, another constitutional claim, involves an argument that those facing military commission charges are entitled to constitutional guarantees of due process. Procedural fairness issues have arisen in all commission cases, and involve such matters as the use of “hearsay” evidence and the use of coerced statements made by accused individuals, at the time of their capture. This depends upon a finding that the due process guarantee does apply to foreign nationals charged with war crimes. A victory on this point would markedly change the procedures of commission trials from such a decision onward.
Third, an argument that the one charge on which Hamdan was convicted — “material support for terrorism” — is not a war crime at all, and thus no military commission can try such a charge since its powers reach only crimes covered by “the law of war.” If it is a proper charge, then Hamdan’s lawyers argue separately that it cannot be leveled against him because his alleged crimes occurred before the military commissions were created with authority to try war crimes — a claimed violation of the Constitution’s ban on ex post facto criminal prosecution. This challenge will require the courts to decide on the “law of war” issue as it applies to anyone charged with “material support for terrorism.” The challenge on ex post facto grounds depends upon Hamdan and other foreign nationals having constitutional protection under that clause. These challenges are important because two out of three prosecutions before commissions at Guantanamo have included the “material support” charge.
The Justice Department, in its merits brief in the case, raised the question whether Hamdan’s challenge is now “moot” (legally non-existent) because he has been released. While saying that the issue “is not free from doubt,” it conceded to the Circuit Court that it cannot contest his right to go forward with his challenge, because he could face future consequences, if again detained or again charged with war crimes. (UPDATE: Note that the Circuit Court has now told counsel to argue this mootness point at Thursday’s hearing.)
On the three legal or constitutional questions, the Department has contested Hamdan’s complaint on each.
First, it contends that, during wartime, the government has always been allowed to treat foreign nationals differently from U.S. citizens, and thus there is no equal protection violation in limiting Guantanamo prosecutions to non-citizens. If those charged by military commissions do have any guarantee of equal protection, the Department argues, it was not violated in Hamdan’s case because cases like his arose during armed conflict.
Second, it argues that foreign nationals at Guantanamo have not gained in court any right to constitutional due process. (In previous filings in Guantanamo habeas cases, the Department has argued that the Supreme Court’s Boumediene decision is confined solely to the issue of challenging detention at Guantanamo in a civilian habeas court. The D.C. Circuit has held that there is no due process right for those detainees.) The Department argues that detainees like Hamdan, facing war crimes charges, are not entitled to the same procedural protections as would a person charged with crime in a civilian court.
Third, it contends that “material support for terrorism” is covered by “law of war” concepts, because the “common law of war” has always included the offense of unlawful belligerency or terrorism. Congress, it has added, is entitled to deference on its choice of what crimes to put before military commissions. It also has argued that there is no ex post facto problem in charging Hamdan with this crime because the offense pre-dated the creation of military commissions.
The two sides have filed lengthy briefs in the Circuit Court. Hamdan’s initial brief is here, the government’s response is here, and Hamdan’s reply is here.
There is no set timetable for the Circuit Court panel to decide the case. Once it rules, the losing side may seek review before the full en banc Circuit Court, and, ultimately, before the Supreme Court. Both the en banc Circuit Court and the Supreme Court have discretion whether or not to get involved.
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