I was out of the country last week and missed the opportunity to weigh in promptly on the Hamdan decision. In reading the reactions, I have noted that many human rights and civil liberties groups have insisted that the decision proves, more than ten years later, that Guantanamo detainees should have been tried in federal court rather than military commissions. Bobby responded with a typically thoughtful post questioning whether Hamdan could actually have been tried in federal court for material support for terrorism for his acts prior to November 2001 because the federal material support statutes (18 USC 2339A and 2339B) were not amended to apply extraterritorially until November 2001 and 2004, respectively. I simply want to expand on Bobby's comment by noting that this was a significant obstacle for prosecution in federal court of the majority of Guantanamo detainees.
During the Bush Administration, human rights groups and many foreign (especially European) governments insisted that ALL Guantanamo detainees SHOULD be prosecuted in federal court, or released. But this argument, while based on an understandable and strongly supportable policy preference, was premised on the assumption that all detainees COULD be tried in federal court. In fact, it was always my understanding from the Department of Justice that, as with Hamdan, many if not most detainees could NOT be prosecuted in federal courts for many of their actions prior to November 2001 (such as training in al Qaida training camps), because 2339A and 2339B did not apply to extraterritorial acts of non-nationals. As a result, it is misleading for human rights and civil liberties groups (and the New York Times editorial board) to insist that all Guantanamo detainees should be tried in federal court. In fact, many of them could not have been tried in federal courts and would have to have been released -- not because they were "innocent" of terrorist acts (as their defense counsel have vigorously asserted), but because they had not committed federal crimes. It is my understanding that this is a major reason why the Obama Administration, which had been expected to jettison military commissions and to rely only on federal courts, reluctantly decided in early 2009 to retain them.
Let me be clear: I have never been a particular advocate for military commissions, and certainly not for their unique use to prosecute all Al Qaida-related suspects. I was not involved in their initial creation and have never been especially partial to them. When the Attorney General announced that the 9-11 planners would be tried in federal court, I supported his policy decision (although it struck me as a bad idea to try them in federal court in New York City). But military commissions -- for better or worse -- have a necessary role in prosecuting many members of al Qaida and the Taliban who engaged in terrorist-related acts that were not covered by 2339A and 2239B.