Hamdan Oral Argument Preview

By Wells Bennett, Larkin Reynolds, Lawfare Staff
Wednesday, May 2, 2012, 9:29 PM

Tomorrow morning, a panel of three judges from the United States Court of Appeals for the District of Columbia Circuit (Chief Judge Sentelle along with Circuit Judges Ginsburg and Kavanaugh) will hear argument in the case of Salim Hamdan v. United States.  

Steve’s excellent previews of the key issues to watch for, including the recently-raised-by-the-panel question of mootness, can be found here and here.   (Readers will recall that Hamdan finished serving his sentence and is no longer in U.S. custody; the Court of Appeals thus has asked whether there is a live controversy left to litigate.)  This summary is more of the plain vanilla distillation of the issues—intended to be useful for those interested in the case but disinclined to wade through the nearly 300 pages of briefs.

It goes without saying that the case is a big deal—though how big will depend on the Court of Appeals’ approach.  A merits win for the government would help to quiet the controversy surrounding the offense of which Hamdan was convicted—material support for terrorism (“MST”)—and ensure its availability going forward.  Such an outcome also would shore up both the government’s authority to punish conduct predating the commissions’ formation, and the MCA’s compatibility with equal protection principles.  Though perhaps unlikely, a win for Hamdan could take material support off the table, permanently; or even put a more serious dent in the commissions’ broader viability.



Salim Hamdan, who is Yemeni, was charged in 2007 with conspiracy and MST.  The case proceeded to trial before a military commission convened under the Military Commissions Act of 2006.  After a trial, Hamdan was found not guilty of conspiracy and three counts of MST—but guilty on five other MST counts.

He appealed his conviction to the Court of Military Commission Review (“CMCR”).   After hearing oral arguments in the case in early 2010 and later resolving some recusal issues involving two of the judges who were initially assigned to hear the case, the Court decided to hear the cases en banc.  Hamdan's argument to the en banc panel was as follows:

(1) MST is not a violation of the law of war and, therefore, falls outside the limited jurisdiction of the military commission; (2) even if MST became a law of war offense after the enactment of the MCA in October 2006, it was not such an offense at the time of the alleged conduct (February 1996 – November 2001), and therefore Hamdan’s conviction is the result of an illegal ex post facto prosecution; and (3) the prosecution of Hamdan by a military commission affording fewer rights and procedural protections than would be afforded to a similarly situated U.S. citizen, violated Equal Protection principles enforceable under both U.S. and international law.

The CMCR unanimously rejected all three of Hamdan’s arguments and affirmed his conviction.  It said Congress had validly exercised its constitutional authority to “define and punish offenses against the law of nations by codifying an existing law of war violation into a clear an comprehensively defined offense of providing material support to terrorism.”  It determined that there was “no constitutional prerequisite of universal, international, or scholarly unanimity before Congress may act” pursuant to the Define and Punish Clause.  The CMCR cited several sources of evidence for its finding that MST was properly deemed an offense against the international laws of war: (1) international conventions and declarations relating to terrorism; (2) decisions of international criminal tribunals, including those employing “joint criminal enterprise” as a theory of liability; (3) domestic criminal statutes criminalizing MST outside the United States; and (4) prior aiding-the-enemy prosecutions, including a number brought during the Civil War; and (5) prior convictions for membership in a criminal organization.  Those sources of evidence supplied the “substantial showing” required to uphold Congress’s action.

The CMCR also held that there was no ex post facto difficulty with upholding the conviction obtained by the commission even if the conduct had only been criminal under tribunals other than the MCA system prior to their establishment.  This is because the commissions offer defendants the “substantial protections” of the other venues, and therefore Hamdan’s trial for MST amounted to something of a “post-offense venue change” and did not violate any ex post facto principles.  Regarding equal protection, the court determined that it would defer to Congress’s decision to treat foreigners differently from U.S. citizens, in light of the foreign policy interests that were “strongly implicated.”  It therefore subjected the MCA to the least-searching, “rational basis” form of equal protection review—which the statute survived.

The CMCR’s ruling is the subject of Hamdan’s present appeal.  The issues and arguments on appeal are broadly summarized below.


Hamdan’s Opening Brief

Hamdan’s opening brief largely repeats the arguments he advanced before the CMCR.  In essence, he claims that the CMCR improperly rejected them, and asks that his conviction therefore be overturned.

Material Support

Out of the gate, Hamdan states that, in determining that MST is a law-of-war offense which Congress had the power to “define and punish,” the CMCR relied on an “irrelevant and distinguishable assortment of historical records and other sources.”  Although the CMCR said it would not give “absolute deference” to Congress’s views regarding MST’s status under international law, it still deferred far too much.  For one thing, the Supreme Court has made clear that Congress cannot transform a domestic crime into an international offense simply by re-labeling it.  Effectively, Hamdan says, the CMCR therefore confused the issues of (1) whether the particular conduct alleged is properly recognized as a war crime; and (2) how much deference the courts should give Congress in exercising its power to define offenses.

Hamdan next argues that the CMCR employed the wrong standard, when it inquired whether MST is, in fact, an offense against the laws of war.  Citing Sosa v. Alvarez-Machain, Hamdan v. Rumsfeld, and a case from 1820, The Scotia, Hamdan argues that there must be "plain and unambiguous precedent" for Congress to properly define MST as a war crime.  That standard was not met here, he says.

To illustrate MST’s doubtful status under international law, Hamdan cites to a number of law review articles; a report by the Congressional Research Service; and statements of a few Obama Administration officials, including Jeh Johnson, and the former head of DOJ’s National Security Division David Kris.  There’s also the Supreme Court’s plurality opinion in Hamdan v. Rumsfeld: though it did not address the 2007 commission charges brought against Hamdan,  it quite clearly stated—in regard to similar charges—that “[n]one of the overt acts that Hamdan is alleged to have committed violates the law of war.”

According to Hamdan, the charge of “aiding the enemy,” which might properly be considered a violation of the law of war, is “entirely distinct” from MST.  This is because aiding the enemy requires a breach of allegiance to the punishing state. Hamdan obviously had no such duty.  That much demonstrates that the CMCR’s analysis of civil war precedents was also flawed: the Civil War-era offenses either “recit[e] the accused’s citizenship and breach of allegiance,” or said the same thing in less formal language.

Hamdan finally says Congress “took an existing domestic crime, called it a war crime, and purported to give power to an Article I court to adjudicate that domestic crime.”  This violates the Separation of Powers, Hamdan argues, because jurisdiction over domestic criminal prosecutions is a core judicial function of Article III courts; Congress cannot simply delegate it to Article I tribunals.  During debates on the MCA, Senator Graham had intimated that Hamdan’s trial by military tribunal was akin to a U.S. service member being tried by for a federal crime not otherwise part of the UCMJ pursuant to the Assimilative Crimes Act.  But that isn’t what happened.  In fact, Hamdan was tried in a completely different forum, and Congress had no power to force him to be tried there since his crime was a federal offense, not a war crime.

Ex Post Facto

Hamdan then turns to the second argument for overturning his conviction: “Even if, at the outer reaches of its power under the Define and Punish Clause, Congress properly defined MST as a war crime in 2006 based on evolving international norms, the Government’s prosecution of the crime for conduct occurring up to a decade prior to 2006 violates the Ex Post Facto Clause of the U.S. Constitution.”  Congress recognized that it had no power legislate in violation of ex post facto principles; this is evidenced by the MCA’s claim that it codified (read: did not just make up) “existing law.”  The CMCR bought that argument.  But it erred in doing so, says Hamdan.

Next the appellant points to various laws—domestic and foreign—that might be deemed to have put him on notice of a commission prosecution for MST.  One problem: these were enacted only after Hamdan’s conduct and arrest.  The federal MST statute likewise was passed in 1994 and significantly amended in 2004—three years after Hamdan's capture.  That procedural tweak would be insignificant, were it not for the fact that Hamdan's MST conviction directly resulted the 2004 amendment.  The latter criminalized the very types of conduct that, according to the government, Hamdan engaged in.

Equal protection

Finally, Hamdan raises a constitutional challenge to the MCA, one based on the Fifth Amendment’s implied guarantee of equal protection.  In Hamdan’s view, the CMCR erred in ruling that the equal protection guarantee does not extend to aliens detained at Guantanamo “under all circumstances,” full stop.  That categorical determination cannot be squared with Boumediene, which said a practicability analysis should inform the application of rights to Guantanamo detaineesAlthough certain D.C. Circuit decisions have hinted at a more stringent, hostile-to-detainees analysis—one that would foreclose the application of any rights at all for commission defendants—such hints (in Al-Bihani v. Obama, Rasul v. Myers, and Kiyemba v. Obama) amount to mere dicta.

Secondly, the MCA violates Equal Protection because it deprives defendants of fundamental criminal procedural rights, such as the right to a fair trial under the Fifth Amendment.  The commission that convicted Hamdan, in particular, heard statements Hamdan made without first having been advised of his right against self-incrimination.  There’s also an impermissible discrimination problem in the MCA: only aliens enemies are subject to prosecution under the statute.  According to settled law, discrimination on the basis of alienage is subject to strict scrutiny.  The CMCR mistakenly reviewed the MCA according to the more forgiving rational-basis standard.  This was a consequence of the court’s equally mistaken views of Congress’s authority over immigration matters.  The CMCR incorrectly interpreted this as suggesting that any federal statute dealing with aliens will be subjected to rational basis review only.  On the contrary, argues Hamdan, Congress’s power to control immigration does not give it plenary power over aliens.

The Government’s Opposition

Not so, say the prosecutors in their opposition brief.  It consists of three overarching legal reasons for affirming Hamdan’s conviction below.

Material Support for Terrorism

Up first is the government’s marquee argument – that MST is “properly subject to prosecution by military commission.”  The main rationale for this is that Congress’s war-making powers allow for the statutory codification of offenses against the “U.S. common law of war” – a body of domestic wartime law that encompasses, and has (in the government’s view) long prohibited MST as an offense.

Embedded in this argument is a rejection of Hamdan’s claim that the Define and Punish Clause represents the only basis for the legislature’s action.  The MCA itself indicates to the contrary, argue the prosecutors: the statute provides that Congress meant to codify, and to subject to commission jurisdiction, not merely traditional offenses against the law of war but also offenses that are “otherwise triable by military commission.”  The language about international offenses obviously nods in the direction of the Define and Punish Clause.  But the latter phrase suggests other grants of congressional power – those pertaining to war.

Providing material support to unlawful belligerents also is an common-law offense triable by military commission.  Plenty of historical practice establishes this, in the prosecution’s view.  During the Civil War, guerillas and marauders were not entitled to lawful combatant immunity.  Instead, “armed enemies not belonging to the hostile army,” if they engaged in hostile acts, would be tried by military commission.  Most important, such trials were authorized not only for those who committed hostile acts, “but also [for] those who knowingly joined with, or provided aid and assistance” to those committing them.

There’s a pause while the opposition brief takes on some objections raised by Hamdan and his supporting amicus.  Both emphasize that the Civil War-era prosecutions had implicated a breach of the duty of loyalty – one Hamdan never owed.  The prosecution rejoins that a breach of such duty was not an element of any of the offenses charged in the Civil War cases cited above. The government also rejects Hamdan’s suggestion that the Civil War commission trials cannot provide any reliable guidance for commissions convened under the MCA.  According to Hamdan, the former charged both civilian offenses as well as offenses against the laws of war; Hamdan’s commission, by contrast, charges only law of war violations.  True enough, but beside the point.  The government still insists – citing Winthrop and General Halleck – that the hybrid tribunals distinguished between law of war offenses and purely civilian crimes.

The government then turns to its other key point in this section – that other offenses against the U.S. “common law of war” have been triable by military commission, “regardless of their status under international law.” Here the prosecutors refer to spying during wartime – which, though not thought to state a violation of the international laws of war, nevertheless has been treated as an offense triable by military tribunal.  Founding-era courts martial, for example, were the forum for trials against suspected spies; Quirin also approvingly described the government’s practice of treating spies as unlawful combatants punishable by military commission.

The opposition brief now shifts from Congress’s war-making powers to its power to “define and punish . . . offenses against the law of nations.”  That provision, the government explains, provides a separate basis for Congress’s determination that MST constitutes a commission-triable offense.  The government here admits that MST has not yet attained the status of an offense against the customary laws of war; however, the government says, the Define and Punish Clause, together with the Necessary and Proper Clause, authorizes Congress to bring MST within commission jurisdiction.

The remainder of the Define and Punish argument consists of two parts: one, that terrorism, as a mode of warfare, violates the law of nations; and two, that Congress reasonably determined that punishing MST would fulfill the United States’ international obligation to punish terrorism itself.  The first argument is conceded even by one of Hamdan’s amici, the government.