Yesterday I noted that I'd summarize the United States v. Hamdan oral argument in the Court of Military Commission Review separately from Al Bahlul. I'll note the same caveats with respect to this summary as to those I mentioned for Al Bahlul--namely, that the summary is not as detailed an account of the argument as we try to do for D.C. Circuit arguments. Interested readers can access the audio here.
In general, the Hamdan argument proceeds more slowly than did Al Bahlul. When Joseph McMillan stands to argue Hamdan's case before the seven-judge panel, the judges are largely quiet, allowing him to get through several minutes of argument without interrupting him with questions. He lays out his main arguments, that, first, material support for terrorism never has been a law-of-war offense, and thus the court lacks subject-matter jurisdiction over the case. Second, he argues, even if material support were recognized as a law-of-war offense today, its application to Hamdan would be a violation of the ex post facto clause because it was not so recognized at the time of the alleged conduct. Rather, it was codified only in 2006, years after the conduct in question took place. Finally, he contends that trial by a military commission system that provides so few procedural protections violates equal protection principles enforceable under both U.S. and international law. McMillan will never get the chance to specifically address this final argument during his presentation.
Having laid out his case, McMillan then takes a moment to boil it down for the panel. At its highest level, the difference between Hamdan's position and the government's is that Hamdan is asking the court to apply a strict standard of review to the case below. He says the government, by contrast, wants a loose and deferential standard, almost a perfunctory sort of review. He notes that there is a long line of cases that call for “close policing” of the military tribunals; these cases require plain and unambiguous precedent (citing Hamdan), and universal agreement and practice (citing Quirin) before considering a crime as triable by commission. He also cites the Supreme Court's opinion in Sosa v. Alvarez-Machain, which he says requires that the offense must be of a norm that is specific, universal, and obligatory. He stresses that, at the times relevant to the disposition of this case, there was no governing statute; in the absence of statute or treaty, the common law of war governed, and the court must look at this case through that lens. The common law of war, he urges, requires plain and unambiguous precedent.
McMillan hammers repeatedly on the theme that, in contrast to the strong precedents supporting Hamdan's position, the government's authorities for its claim that these offenses are cognizable under the laws of war are all weak. In particular, he argues, material support has never been tried as an offense under the laws of war, and the government has insufficient authority for invoking the two doctrines it uses as analogues to it: joint criminal enterprise ("JCE") and aiding the enemy. It is telling, he continues, that the military judge ruled (in a pre-trial proceeding) that government could not proceed to trial using the JCE theory in connection with the conspiracy charge. The judge looked at the MCA and found, he explains, that Congress did not intend to import a JCE theory into the conspiracy charge.
He then, finally, gets a question from the bench. Does the military judge's ruling on this point apply as well to the material support charge? McMillan responds that it does carry over, and it further indicates that the judge adopted the proper approach in rejecting the theory's applicability to the charge.
McMillan then moves to discuss the pure law of the matter: that when JCE has been invoked as a theory of liability in other international tribunals, its acceptance was based in part on the inclusion of the principle in the tribunals' governing statute. Acceptance, he goes on, is not universal. Furthermore, even the International Criminal Court has ruled that JCE will only be applied in a context in which the accused retains control over the commission of the crime, as opposed to merely having involvement as attenuated as Hamdan's. In the Cambodian Special Tribunal, he says, the court adopted only a limited version of JCE liability. In short, he says, caution is due in embracing the doctrine. Even if the court accepts a JCE theory, McMillan continues, that theory is not applicable here, because JCE is not a standalone offense. Material support for terrorism has never been never recognized as an international law-of-war violation, and most statutes cited by the government deal with terrorism itself, not “material support” of it.
McMillan is asked to clarify the relationship between the jurisdictional predicate for the tribunal and the underlying offense charged within it. It would be a mistake to conflate the two, he responds; a finding regarding jurisdiction is obviously not sufficient to impose criminal culpability. He concedes that the commission had jurisdiction over his client and he concedes that its factual findings were sufficient to convict under the terms of the MCA. But he proposes that Congress only has the power to codify war crimes triable by commission to the extent that they are recognized offenses under international at the time the conduct took place. He sudggests that, should the CMCR compare the material support charge to recognized law-of-war offenses, it will find that conduct targeted by international law is not commensurate with the elements of the crimes with which Hamdan was charged. They are, rather, very different.
One of the judges asks for an example, and McMillan responds that the UN Convention for the Suppression of Terrorist Bombing, which the government cites, does not criminalize the same conduct of which Hamdan was convicted. While Congress may have acted with sufficient authority to validly criminalize material support activities prospectively, he says, it is a different matter to apply these rules retrospectively. And although Congress has the power to define a crime under the law of nations, "defining" law means imparting definitional certainty so that notice requirements are met. What Congress did here is entirely distinct and exceeded its legislative power; it criminalized retrospectively conduct that wasn't previously triable by commission.
McMillan closes with a quotation from the Hamdan plurality regarding which standard of review the CMCR should apply: "The caution that must be exercised in the incremental development of common-law crimes by the judiciary is, for the reasons explained in the text, all the more critical when reviewing developments that stem from military action." He says the legitimacy and the international acceptance of U.S. military tribunals will turn in some measure on whether the use of the tribunals adheres to current standards of international law.
Col. Francis Gilligan then rises for the United States for what will be a relatively brief presentation. He recounts some of the underlying facts of Hamdan’s alleged activities. He says that Hamdan left his home in Yemen to go to Afghanistan, passed through guesthouses, spent time at Al Farouq, and eventually joined Al Qaeda. Hamdan also swore an oath of loyalty to Osama Bin Laden and carried out a number of critical functions for him, such as serving as a bodyguard and taking him to a number of meetings. Gilligan also states that Hamdan facilitated a number of Al Qaeda's goals by obtaining ammunition and supplies from Taliban warehouses and taking them to Al Qaeda. The key question, he says, is whether it was foreseeable or predictable to the defendant that there would be killings of unarmed Americans. He says it certainly was predictable, particularly after the African embassy bombings, after the U.S.S. Cole bombing, and after September 11.
He then addresses what Congress did and what Congress said that it did in the MCA. First, Congress, in enacting the statute, accepted the Hamdan court's invitation to prescribe laws. In addition, Congress said that it was codifying offenses traditionally triable by military commissions. Col. Gilligan also makes clear that Congress enacted the statute twice--in 2009 and, before that, in 2006--during two different presidential administrations. Under Youngstown, he argues, this should put the president’s power at its apex in carrying out actions under the MCA.
The next exchange seems to get at the crux of what the court must decide here. Gilligan is asked if he can name one case where “material support” was charged? He says that Congress renamed an existing offense “material support,” and that offense was previously called “aiding the enemy.” A subset of that preexisting offense is now called material support. He goes on to describe how the main conduct Congress criminalized in the MCA is the savage killing of Americans, and the conception of this conduct as a war crime is amply supported by history, he says.
Gilligan is then given a question about whether the legislative history is clear on what Congress intended here? He says that Congress was clear, and mentions the language in the actual statute (which is legislation, though not legislative history). The rest of his answer is loose on actual legislative history, but his overarching point is that the court should give deference to what Congress says it means.
He then closes his presentation (after about eleven minutes at the podium), by arguing somewhat abstractly about the broader interests at stake in the case: "Congress has a right to engage in a new type of war," he says. The court should not allow formalism (about what Congress calls the offense) to trump substance, or, for that matter, formalism to trump morality.
McMillan makes four clear points in rebuttal. First he invokes Department of Defense General Counsel Jeh Johnson’s testimony from the 2009 Senate Armed Services Committee hearing on Military Commissions. Johnson said (link here):
After careful study, the Administration has concluded that appellate courts may
find that “material support for terrorism”--an offense that is also found in
Title 18--is not a traditional violation of the law of war. As you know, the
President has made clear that military commissions are for law of war
offenses. We thus believe it would be best for material support to be
removed from the list of offenses triable by military commission, which
would fit better with the statute’s existing declarative statement.
McMillan argues that this testimony was echoed by others, including then-Assistant Attorney General David Kris. Congress ignored the testimony in enacting the MCA.
The judges push back a bit on this. Isn't the language in the Johnson quote on its face less than dispositive? Using the words "may" and "best" do not mean that there is any clear opinion on the legality of the charge coming out of the administration. McMillan concedes this point, and he then gets a question about whether the CMCR should give deference to the DoD General Counsel’s opinion. Here McMillan has backed himself into a corner a little bit, and he knows it. He maneuvers out by saying that while is uniquely the province of the judiciary to say what the law is, the court should look at the Johnson testimony as persuasive authority.
Second, he distinguishes some of the historical precedents that Col. Gilligan discussed during his presentation, urging the court not to view them as supporting the government's view. More broadly, he notes that the government’s use of such outdated precedents shows that the quality of its authorities is weak. Given that the court should employ a strict standard of review, it should demand clearer precedents.
Third, he notes that the Rome Statute (establishing the International Criminal Court), which has 130 signatures, gives a clearer picture of what constitute international crimes and how the court should proceed when faced with arguments by analogy from those crimes. Material support for terrorism is not in the statute, he argues. And Article 22 of the statute states clearly the principle of legality, which is the international-law equivalent of the ex post facto rule. It states that the definition of a crime should be strictly construed and should not be extended by analogy. In cases of ambiguity, the statute shall be interpreted in favor of the accused.
Finally, McMillan contests the government’s presentation of facts, stating that the government has tried to reargue the evidence that was put before the original commission. There was no finding by the Commission members that Hamdan ever swore an oath of loyalty to Osama Bin Laden, even though the pledge was a key element of the conspiracy charge; the defendant was acquitted on conspiracy; and Hamdan was also acquitted of the specifications that had alleged that Hamdan transported weapons for Al Qaeda.
And with that, the hearing concludes.