Undue Delay at the CMCR re the Viability of Material Support and Conspiracy Charges and the Ability to Raise Constitutional Arguments in Commission Proceedings

By Robert Chesney
Tuesday, January 4, 2011, 11:16 AM

Last week I drew attention to the undue delay in resolving Salim Hamdan’s appeal from his military commission conviction, noting that it put in issue the general viability of material support as a charge in the commission system – something that matters a great deal for the larger, ongoing debate regarding the utility of the commissions. I’ve received a lot of input regarding the reasons for the delay, which I describe below. I also want to add that there is much more at stake here than just the viability of material support charges. A companion case stuck in similar circumstances—Bahlul—raises similar questions regarding the viability of conspiracy charges, and both cases also raise critical questions regarding the extent to which GTMO detainees may raise constitutional arguments in commission proceeds. Imagine that in the end the Supreme Court determines in these cases that neither material support nor conspiracy can be charged in commission cases (for conduct predating 2006 at least), and that GTMO detainees may raise constitution-based arguments in this setting much the same as if tried in civilian courts.... As an initial matter, you won’t learn anything about the delays from DOD’s incredibly out-of-date CMCR website. Your best bet is to check out the always-useful CAAFlog, here. Drawing on those posts and other information I’ve received, here is the current situation as I understand it: There are two cases at issue: Hamdan and Bahlul. Both raised questions regarding the material support concept, and Bahlul added a challenge to the equally if not more important charge of conspiracy. Both were argued to three-judge CMCR panels in January 2010 (only one judge was common to both panels). Some eight months went by with no results, and then things got complicated. The CMCR eventually decided to take on both cases en banc even though neither panel had yet ruled. Meanwhile, an array of judicial personnel issues arose. One of the judges from the original Hamdan panel retired and another recused in that case. Meanwhile, counsel for both Hamdan and Bahlul counsel moved to disqualify two other judges, and those motions remain pending. As I understand it, Secretary Gates has since appointed a number of replacement judges to the CMCR, with more possibly still to come (see the CAAFlog link above to see who they are; don’t bother with the CMCR site). There is no good reason to await further appointments, however, before the existing members come to grips with the disqualification and merits issues. Even if the court does not wait for further appointments, we are in for extensive delays. I would guess we are least six months from a decision if there is no additional briefing or argument, and a year if there is. On the whole, the situation is rather ridiculous given the dead certainty that whatever the result the issues will then go immediately to the D.C. Circuit. Would that the original panels had just decided these cases in timely fashion.