Again, it is anyone's guess how the case will be resolved. The back-and-forth between the judges and the lawyers did not point obviously towards one outcome or another. For what its worth, and in the meantime, I’m with Steve: Hamdan seems to have fared well yesterday, perhaps unexpectedly so.
(As Larkin and I previewed the argument in some detail, I’ll assume reader familiarity with the key issues in play.)
Argument by the Appellant
Hamdan’s lawyer is Joseph McMillan. He rises, identifies himself to the panel, and asks to reserve a few minutes of rebuttal time.
Our first topic is possible mootness - an issue that, days earlier, the panel had ordered McMillan and the government to be prepared to discuss. Our position, McMillan says, accords with that of the government, in that both sides believe that the appeal falls within the Supreme Court’s decision in Sibron. Under this case, collateral harm to Hamdan is presumed to arise from his conviction for war crimes. That conviction could be used against Hamdan at sentencing, if he were to be apprehended and once more prosecuted and convicted before another military commission. For that reason, McMillan tells the panel his client’s case is not moot and may proceed. Judge Brett Kavanaugh is the first of the three judges to speak, and asks if the presumption is rebuttable. The lawyer’s answer: unclear, your honor, at least gauging by the Supreme Court’s jurisprudence in the area.
Today's panel has one senior-status judge, Judge Douglas Ginsburg. He asks what happens, from a mootness perspective, if the defendant dies; wouldn’t the case then be over, under those circumstances? Before McMillan can distinguish this hypothetical departed from his client – who is still alive and living in Yemen – the Chief Judge, David Sentelle, confirms that a defendant’s death indeed would moot a direct appeal. For his part, McMillan demurs and takes the Chief Judge’s word for it, while pointing out that in this case, the government has said it cannot rebut the presumption of collateral harm. As far as McMillan is concerned, there no daylight between the parties and the controversy thus remains a live one. But if the court is troubled, though, the lawyer says he is prepared to brief the mootness issue or to supplement the record as necessary. (Troubled or not, the back-and-forth prompts the Chief Judge to order further written briefing – and to erase any lingering hope for quick disposition from the Court of Appeals.)
The discussion turns to the case’s key question: is providing material support for terrorism a war crime triable by a military commission convened under the MCA? McMillan’s answer is an emphatic “no.” Here, he says, Hamdan relies on a line of cases in which military courts have attempted to broaden their jurisdiction. In those instances the Article III courts consistently have pushed back. Judge Kavanaugh’s second comment, perhaps surprisingly, reminds McMillan that he can win the case without challenging the legislature’s prospective authority to establish war crimes under the Define and Punish Clause. To advance the ball, doesn’t Hamdan need only to establish that material support was not a commission-triable offense when committed? That’s right, the attorney responds; even the government concedes that. We are not attempting to strike out Congress’s ability to enact an material support offense forever. The key is that, during the relevant time period, 1996-2001, there was no international war crime of material support. The prospective validity of the 2006 and 2009 Military Commissions Acts is thus not an issue in the case.
Kavanaugh moves to aiding and abetting. How, the judge inquires, does that offense compare to material support? The attorney explains that under international law, the elements of aiding and abetting are different from the elements of material support as set forth in the MCA: unlike aiding and abetting, material support need not involve a completed act, and liability can be imposed for simply knowing that a supported organization has been associated previously with terrorism. The requirements for a material support conviction, McMillan sums up, are far less stringent than those required for an aiding and abetting conviction.
The judge is also keenly interested in his own role in a case such as this. What approach should the courts take, in evaluating the legislature’s interpretation of the laws of war? (Kavanaugh specifically refers McMillan to the debate on this issue between the plurality and dissent in Hamdan v. Rumsfeld.) Is Congress bound to codify only recognized norms? Or should the Court of Appeals defer to Congress when the latter says it is enacting a longstanding customary principle, even though evidence might suggest otherwise on closer inspection? McMillan has precedents at the ready: Sosa, Quirin, and, unsurprisingly, Justice Stevens’ opinion in Hamdan v. Rumsfeld. He concedes, on prompting from the Chief Judge, that Sosa focused strictly on the Alien Tort Statute and not on commission matters, but he nevertheless cites the case’s international law analysis as relevant to Hamdan’s. In Sosa, the Supreme Court said that actionable offenses under international law must be specific, universal, and obligatory. Or take the Hamdan v. Rumsfeld plurality – it said that an offense must not be considered triable crime unless it is firmly established in precedent. Quirin, McMillan adds, likewise imposed a high standard on Congress – and, by implication, invited the judiciary to scrutinize the legislature’s codification efforts.
Chief Judge Sentelle raises an eyebrow. He asks about the Quirin court’s approach to the offense of Sabotage. McMillan says that there was sufficient evidence of sabotage’s status in that case, so as to render it commission-triable; he emphasizes, though, that subsequent cases have made clear that in order to be tried in a law-of-war commission, there must be clear precedent, recognized by the international community, of an offense’s status under customary international law. Sentelle: are U.S. precedents relevant to that inquiry? McMillan: yes, in that our nation’s precedents make clear that the law of war is an international body of law, not a domestic one. In that sense, the government’s view – that material support is part of a domestic, “U.S. common law of war” – is both radical and unsound. You can sense McMillan’s wish to move to another of Hamdan’s key claims: he adds that, under the government’s “common law of war” theory, military commissions could try nearly any sort of crime, regardless of its status under international law. In doing so, commissions might dangerously encroach on the jurisdiction of Article III courts.
The Chief Judge is not quite ready to move on, though. I’m not sure you’re characterizing the government’s argument correctly, Sentelle suggests. Isn’t the government’s position that military commissions can try offenses against the law of war – both international and domestic? McMillan responds by once more playing on his case’s leitmotif: the law of war is international, not domestic; there just isn’t any U.S. common law of war. And remember that according to the government, Congress may codify offenses like material support under its war powers – it says it need not rely on the Define and Punish Clause. It follows that any time the legislature finds a connection between conduct and warfare, then the conduct is deemed to be an international law of war offense simply because Congress has said so. The true rule, McMillan suggests, is that Congress can only subject recognized, bona fide international law of war offenses to trial by military commission.
Again Kavanaugh steps in and reminds McMillan that he doesn’t need to go that far to win this case. Congress doesn’t have to wait for the rest of the world to exercise its power to recognize war crimes, does it? That’s a vastly different question than the question presented by Hamdan’s case – in Kavanaugh’s view, at least. Sensing that he need not push the matter, McMillan pivots and notes some other supporting authorities. In the Hudson case, McMillan says, the Supreme Court made clear that there are no federal common-law crimes, full stop; the Court reaffirmed that notion as recently as 2001. And the Hamdan v. Rumsfeld plurality likewise emphasized that Civil War-era prosecutions – those cited by the government in support of its “common law of war” theory – should be treated with caution. That is because, the attorney continues, Civil War commissions were not pure “law of war” commissions, and therefore often tried crimes that were not offenses against the international laws of war.
Over to Sentelle, who is interested in Hamdan’s ability to invoke the Fifth Amendment – a threshold requirement for his equal protection challenge to the jurisdictional provisions of the MCA. Here’s Sentelle inquiring of McMillan: you say the Constitution’s protections apply to Guantanamo detainees held outside the United States – and consequently, that the contrary principle, announced by the Supreme Court in the Eisentrager case, has been overruled. Am I wrong about those things? McMillan says that the Chief Judge is not over reading Hamdan’s position. For McMillan, Boumediene is the most relevant case, and Boumediene says constitutional protections should apply to detainees unless to do so would be anomalous or impracticable.
Sentelle interrupts to remind McMillan that the Court of Appeals twice has read Boumediene as dealing with the habeas right only, not with any other constitutional rights. McMillan sees the difference between habeas and criminal procedural rights – but says that the difference does not hurt and in fact helps Hamdan’s case. The rights to life and liberty, the truth-seeking function of a criminal trial - all these are fundamental rights, in McMillan’s view. Sentelle stops him: We don’t think Eisentrager is overruled. McMillan notes that Eisentrager dealt with a prison in Germany. By contrast, Hamdan’s case involves a detention facility at Guantanamo, where the U.S. is de facto sovereign; even if Eisentrager survived, its facts can be distinguished.
Judge Kavanaugh jumps in to ask about the way constitutional protections might be applied to Guantanamo detainees. Is it all-or-nothing, or right-by-right? McMillan doesn’t wade too far into the question, reiterating his brief’s claim that the Fifth Amendment’s equal protection guarantee in fact runs to Guantanamo. And that Amendment precludes the unjustified distinction imposed by Congress in the MCA. As evidence, McMillan cites the views of a military judge below, who noted the difference between commission procedures and those of typical criminal trials.
McMillan’s main argument thus comes to a close, and he yields the lectern.
Argument by the Appellee
John De Pue, the government’s attorney, stands before the three-judge panel. Like his opponent, De Pue begins with mootness. He tells the judges that Sibron’s presumption of mootness does indeed apply to Hamdan’s case. Though rebuttable, that presumption imposes a high standard – one so high that the government cannot demonstrate that Hamdan’s prior conviction will cause him no collateral harms whatsoever. A second prosecution and conviction would bring the prior conviction into play, De Pue goes on, and could compound Hamdan’s sentence at the second proceeding. An apparently unsatisfied Ginsburg is still mulling. He presses De Pue some more on the whether the court’s past mootness cases might actually be implicated. The lawyer’s answer is only a few moments old when Sentelle jumps in, thanks both sides for preparing oral argument on mootness, and – provocatively – doubts whether mootness has ever been used to dismiss a criminal case on direct review.
This moves De Pue to the essence of the case. The government’s position is that there is domestic common law of war. This long has proscribed material support for terrorism, if not by that name precisely. And, acting under its war powers, Congress therefore may codify such common law war crimes by statute, as it did here by subjecting material support to trial by commission.
Does De Pue agree that the MCA’s material support offense cannot be applied retroactively? Judge Kavanaugh wants to know. Perhaps having material support’s common law pedigree in mind, De Pue says he does not agree, so Kavanaugh asks if Congress could enact a brand new material support offense and then prosecute Hamdan for his past conduct. De Pue answers with a clarifying no, while Kavanaugh, talking past De Pue, states that the issue really is whether material support was an offense against the laws of war at the time Hamdan’s actions occurred. The judge refers to his colloquy with McMillan, and the Supreme Court cases the latter had relied upon – those suggested that the law of war is international, not domestic. Correct?
International law is but one source of law – and surely not the only source of law - which Congress may rely upon, explains De Pue. Domestic precedents matter, too. Take the United States’ approach to spying. That is not an international offense, but certainly has been tried in a commission setting by the United States. Quirin, the attorney argues, relied on the United States’ practices in determining whether an offense was properly subject to commission jurisdiction. That draws a follow-up from Judge Kavanaugh, who disputes the lawyer’s reading of the Nazi saboteur case. Quirin, Kavanaugh presses, treated the law of war as an international body of law, no? The Attorney General took the same position in a related commission case, for that matter.
De Pue rejects the judge’s premise, once more suggesting that under Quirin, it is not enough to inquire into an offense’s status under international law. Indeed, De Pue continues, the Hamdan v. Rumsfeld plurality referred to United States’ practices as being relevant to the issue of whether an offense may be tried by military commission. It is odd to hear the government invoke Hamdan v. Rumsfeld as helpful authority, at least for Judge Kavanaugh. In fact, the Uniform Code of Military Justice authorizes commission trials for offenses against the “law of war” – which the Hamdan v. Rumsfeld plurality took to mean international law. The judge points this out to De Pue. True, responds the Appellee’s lawyer, but Hamdan also mentioned U.S. common law. His answer then becomes a question: how can you bring spying within the jurisdiction of a military commission, without also acknowledging the relevance of U.S. practices to commission prosecutions? Nobody utters an answer, but the reasoning is obvious enough. Because there is a separate, domestic common law of war, Congress can codify common law offenses by statute under its war power.
Prompted by Kavanaugh, De Pue then turns to the domestic, common-law antecedents of the MCA’s material support offense. These stem from the Civil War, he says, when marauders committed banditry and outrages on the civilian population. Under Quirin Congress could look to the Civil War-era offenses as analogies for material support. By the sound of things, the answers aren’t doing much for Judge Kavanaugh. He cites public testimony by the Defense Department’s General Counsel and the Assistant Attorney General for the National Security Division, both of whom stated that material support could not be tried by commission. This because, according to the testimony, material support is not an internationally acknowledged war crime. Neither man, Kavanaugh presses, referred to any U.S. common law of war? They didn’t, admits De Pue, but a Deputy Assistant Attorney General from a prior Administration testified about the matter, and he did.
Okay, but what about Hamdan v. Rumsfeld’s suggestion that, absent a statute or treaty, precedents must plainly and unambiguously establish the elements of a putative war crime? The suggestion by that case’s plurality has no application, according to De Pue, because in this case, Congress has enacted a statute – indeed, two of them, once in 2006 and 2009. The courts therefore must defer to Congress’s reading of the common law, as codified in the MCA. Wait, Kavanaugh says: there wasn’t any statutory prohibition at the time of Hamdan’s charged conduct, was there? De Pue acknowledges this, and elects once more to play on his favorite string: again, he emphasizes, the MCA codified material support, which long has been triable by military commission. That still does not satisfy Kavanaugh, who doesn’t see why judges should defer to Congress when ex post facto issues are presented. Again, De Pue says that’s not what the government is asking for. Domestic, not international law, was the source for Congress’s action, and domestic common law always has criminalized conduct like Hamdan’s. Folks, there’s just nothing to see here, ex post facto-wise.
Hamdan v. Rumsfeld is still troubling Judge Kavanaugh, and De Pue seems to intuit as much. When the Judge asks De Pue about the plurality’s evident skepticism of Civil War prosecutions, the government’s lawyer shifts. That part of the Hamdan opinion, he says, did not give a lot of thought to the primary authority it cited – Winthrop’s treatise. Winthrop, when read properly, instead makes clear commissions historically have tried both international and domestic offenses. The key, which apparently was lost on Stevens’ opinion in Hamdan v. Rumsfeld, is to examine each offense closely. Domestic offenses were labeled as such during the Civil War commission cases, and law of war offenses likewise.
De Pue, moving on to another of McMillan’s points, adds that Quirin forecloses any suggestion of an Article III problem. The Chief Judge asks, did Quirin have an ex post facto component? That argument was raised in briefs but not mentioned in the Court’s opinion, replies De Pue – as a consequence, he reads Quirin as silently rejecting any ex post facto claims by the saboteurs. Again, Quirin mentioned the common law of war, at pages 34 and 35; the plurality and the dissents in Hamdan v. Rumsfeld recognized domestic common law practices, too. Judge Kavanaugh once more doubts that the law of war is broadly viewed as domestic in nature, although there may indeed be a separate domestic practice that deviates from international norms.
The questions then shift a bit, to additional sources of congressional power and historical analogs to material support. What about aiding and abetting? Judge Kavanaugh says that this is not the same as material support; of the pair, is aiding and abetting not harder to prove? It is, according to De Pue. Well if that is correct, asks the judge, do the aiding and abetting precedents really help the government’s case? This affords the lawyer an opportunity to step away from Congress’s war power. He instead invokes the Define and Punish Clause, as exercised in tandem with the Necessary and Proper Clause. Nobody disputes that terrorism is an offense against international law. Acting under the Define and Punish and Necessary and Proper Clauses, Congress reasonably may criminalize not merely terrorism itself, but also proximately related offenses – like material support.
Defining terrorism is a murky endeavor, at least for Chief Judge Sentelle. He asks whether the parties agree that, in fact, “terrorism” is an international law offense. Amicus for Hamdan certainly said so, answers De Pue, and his understanding is that Hamdan takes the same position. But is there any clear definition of “terrorism?” De Pue’s answer to Sentelle’s question is that there is a core understanding of what terrorism is. Sentelle says he has tried in vain to find any single definition of the crime of “terrorism,” and cites his own prior opinions as evidence that there may not be any one meaning for the term. De Pue concludes by emphasizing that, whatever the offense’s exact definition, terrorism as a mode of warfare is undoubtedly forbidden by international law. He yields the floor.
Rebuttal by the Appellant
McMillan returns and says he has a few brief points in rebuttal. The first: the court clearly understands that, from 1996 to 2001 – the range relevant to Hamdan’s charges – there was no statute identifying material support as a war crime. And there was no clear and unambiguous definition of the offense under international law, either. Judge Kavanaugh checks McMillan’s cases – is he relying on Hamdan v. Rumsfeld? He is, but McMillan again mentions Sosa, too, and the latter case’s requirement that an international law norm be universally recognized and obligatory in character. But what about Quirin? Kavanaugh mentions De Pue’s heavy reliance on that case for the government’s theories of a domestic law of war. Again, it seems McMillan and De Pue read Quirin in vastly different and quite incompatible ways. Unlike De Pue, Hamdan’s lawyer interprets the case as firmly establishing the law of war as an international body of war only. He points the court to Justice Kennedy’s concurrence in Hamdan v. Rumsfeld, which took the same view.
Judge Kavanaugh next asks McMillan about spying – De Pue took that offense as evidence of a domestic common law of war that Congress might look to in establishing commission-triable offenses. What matters to McMillan is that the international community views spying as an offense properly tried by military tribunal. Winthrop even said so in his famous treatise. For additional backup, McMillan cites an old opinion of the Attorney General, which described spying as a recognized mode of warfare. When questioned by Chief Judge Sentelle, McMillan notes that the Quirin saboteurs were charged with spying – but that, quite pointedly, the Quirin court did not pass on the law-of-war validity of the spying count. He again emphasizes that our domestic practices regarding spying appear broadly to comport with the international practice of trying wartime spies in military courts.
Our spying exchange ends when Judge Kavanaugh asks, as he did earlier in the morning, about prospective uses of congressional power. Can or cannot Congress push international law in new directions, as it recognizes new offenses under the Define and Punish Clause? The key principle, McMillan explains, comes from the Supreme Court’s Furlong decision. There, the Court said, in so many words, that Congress’s say-so cannot of its own force convert the purely domestic offense of murder into an offense against international law. McMillan is careful to add that Congress nevertheless can use the Define and Punish authority as a clarifying mechanism, to crystallize developing norms.
Since caution is his theme, McMillan also tells Judge Kavanaugh that the mere invocation of congressional war powers are not talismanic – to hold otherwise would be to grant a Hamdi-violating “blank check” to the legislature. In Reid and related cases, the government argued that its war powers justified the expansion of military jurisdiction. And the Court rejected that effort each time, as it should here. Responding to the Chief Judge, Hamdan’s lawyer also says that under Reid and related cases, Congress must use the least broad power available to achieve its chosen objective.
The day’s penultimate exchange has to do with alternate sources of law. Chief Sentelle refers McMillan to the “Martens Clause,” a provision of the 1899 Hague Convention that was named for Fyodor Martens, an esteemed Russian international lawyer. The Martens Clause says in essence that other rules beyond those set forth in the Convention exist and may apply to warfare – and that when they do, such rules should be defined in reference to the various customs and usages between nations. For Sentelle, the provision implies that domestic practices indeed can inform the laws of war. Or, put another way, the Martens Clause could support the government - right? McMillan notes the Convention’s date, and says that international laws have evolved greatly. In order to prosecute a defendant for a war crime, he argues, the war crime must be clearly established and internationally recognized. That takes the Chief Judge back to one of Judge Kavanaugh’s inquiries – how can a nation recognize new war crimes, if to prosecute them, the war crimes must already be internationally established? Seeing the paradox, McMillan says that you can lead with the international community without running counter to the controlling principle; Kavanaugh adds that Congress must be able to lead under some circumstances, but that, in any case, the issue’s resolution is not critical to Hamdan’s position.
Surrebuttal by the Appellee
McMillan sits and De Pue returns for a few moments. Judge Kavanaugh asks if the government could have detained Hamdan until the conflict’s conclusion, and the lawyer says that it could have, but chose not to. Hamdan’s relase to Yemen, according to Kavanaugh, therefore must have embodied a determination about Hamdan’s future dangerousness? Correct, says De Pue – though, when questioned by Judge Ginsburg, the lawyer says he is not aware of the precise standard according to which Guantanamo detainees are released. Chief Judge Sentelle thinks the matter does not call for more back-and-forth, as he knows that, whatever the standard, detainees indeed are released sometimes. The day’s argument comes to an end.