Last week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit—sometimes called the “second-highest court in the land”—threw out the military commission conviction of Salim Ahmed Hamdan, a Yemeni captured in Afghanistan in 2001.
The ruling in Hamdan v. United States was only the latest episode in Hamdan’s long journey through the U.S. legal system—a journey that has had important implications for U.S. law. Most significantly, the U.S. Supreme Court’s 2006 decision in Hamdan v. Rumsfeld placed limits on the president’s power to use military commissions without congressional authorization. Congress attempted to supply the missing authorization in the Military Commissions Act of 2006, but in the 2008 case of Boumediene v. Bush, the Supreme Court held that Act unconstitutional insofar as it eliminated habeas corpus review of detention decisions, and last week’s D.C. Circuit opinion construed the 2006 Act as failing to supply authorization for the military commission prosecution of Hamdan himself.
As I shall explain in this column, last week’s D.C. Circuit opinion is, in certain respects, quite narrow. It holds only that Congress did not authorize Hamdan’s military commission trial, not that Congress may not authorize such a trial for people like Hamdan in the future.
Nonetheless, by invalidating the conviction of one of the most prominent of the handful of militants that the U.S. government has tried since 9/11, the Hamdan case has symbolic significance going beyond the particular legal rules and principles at stake. Seen in broad perspective, the case casts serious doubt on the overall course of the detainee policy that the Bush Administration first charted, and that the Obama Administration has largely followed.
The Key Issue in Hamdan’s Case: Whether Providing “Material Support” for Terrorism Is a War Crime
Hamdan was tried and convicted by a military commission for providing “material support for terrorism” for his role as Osama bin Laden’s driver at a time when he knew that bin Laden and al Qaeda were planning and executing attacks against American civilians. Since the 2006 Act was enacted, U.S. law has expressly defined such material support as a war crime triable by military commission, but, as the D.C. Circuit emphasized, Hamdan was tried for conduct that occurred before the current version of the law was enacted.
What was the law on the books at the time that Hamdan was working for bin Laden? The law then (which is still on the books) simply provided that “military commissions” may be employed to try offenses under “the law of war.” And as the D.C. Circuit noted, Supreme Court precedent pretty clearly establishes that this provision refers to the international law of war. Yet providing material support for terrorism has never been regarded as a crime under the international law of war.
Given that seemingly airtight logic, why did government officials believe that they could try Hamdan for material support for terrorism? The government advanced two main arguments, both of which the D.C. Circuit rejected.
First, the government pointed to language in the Military Commissions Act of 2006 that announced that its definition of offenses did “not establish new crimes that did not exist before its enactment, but rather codifie[d] those crimes for trial by military commission.” But Congress is bound by the Constitution’s prohibition on ex post facto laws—that is, laws that criminalize conduct after it has occurred. A self-serving declaration by Congress that some new law merely “codifies” or “clarifies” the old law cannot satisfy the Constitution’s Ex Post Facto Clause if the underlying conduct did not, in fact, fall within the terms of the old law. And so, to avoid reading the 2006 Act as potentially violating the Constitution, the D.C. Circuit read the purported “codification” as a new law that simply did not apply to Hamdan.
Second, the government argued that even under the old law, Hamdan was triable by military commission because the “law of war” referred to a “U.S. common law of war” that is broader than the international law of war. The D.C. Circuit made quick work of this contention, casting doubt on the government’s claim that prior cases had involved material support for terrorism, and noting that, in any event, the relevant statute clearly invokes the international law of war, not a distinctly American body of law.
Accordingly, the court reversed Hamdan’s conviction.
The Limited Direct Impact of the Hamdan Ruling
To be sure, the D.C. Circuit ruling will likely have a limited direct impact. For one thing, it has only marginal benefit for Hamdan himself; he was released in Yemen in 2008. (The case was not treated as moot due to his release because, under a longstanding legal rule, a person may challenge his criminal conviction even after being released from confinement, so as to avoid the adverse collateral consequences that conviction may entail.)
Nor does the D.C. Circuit decision bar prosecution for people who have committed acts comparable to Hamdan’s since the law was changed in 2006. The Court did not reach the question of whether Congress has the power to expand the list of crimes triable by military commission beyond those that are deemed to be war crimes under international law, but Judge Kavanaugh, in a footnote in which he wrote for himself alone, gave persuasive reasons for concluding that Congress does indeed have that power. Hence, future Hamdans will likely find little to help them in the Hamdan decision.
Indeed, the court suggested that even Hamdan himself could have been tried before a military commission if the government had been more careful in drafting its indictment. Although “material support for terrorism” is not a violation of the international law of war, the court suggested that aiding and abetting terrorism is a violation of the international law of war. And, given what Hamdan knew, he probably could have been charged with aiding and abetting.
Finally, the D.C. Circuit observed that the government was never under any legal obligation to try Hamdan or to release him. During war, enemy belligerents may be detained for the duration of the conflict—and because the conflict with al Qaeda continues, international law permits the United States simply to hold enemy detainees indefinitely. Thus, if the Hamdan ruling makes it more difficult for the U.S. to try any detainees before military commissions, that result could have the ironic effect of leading the authorities to deny those detainees any trial at all.
The Hamdan Case’s Larger Symbolic Significance
Should the Hamdan ruling therefore be viewed as a Pyrrhic victory for past, present, and future detainees? Not necessarily. Although international law permits the indefinite detention of enemy combatants, international and domestic public opinion may not.
Consider that the Bush Administration made the initial decision to detain enemy combatants at the U.S. Naval base in Guantanamo Bay because Administration lawyers believed (incorrectly, as it turned out), that doing so would prevent courts from reviewing the legality of particular detention determinations. But even as it sought unreviewable authority to hold detainees indefinitely, the Bush Administration also asserted authority to put those detainees on trial before military commissions. The Obama Administration has done the same.
Why? Why try detainees at all, when the government can simply hold them indefinitely based on a determination that they are enemy combatants?
The answer, I believe, lies less in the domain of law and more in the domain of public relations. In simultaneously asserting (1) that the detainees are enemy combatants who can be detained for the duration of what may turn out to be an endless conflict and (2) that as unlawful enemy combatants, the detainees need not be given all of the rights of prisoners of war, the Bush Administration made a legally sound argument. But it appeared to the average observer as an effort by the Administration to have its cake and eat it too—to take advantage of the law of war when it suited the Administration, while not paying the price in the form of respecting detainees’ rights.
Trials for war crimes were conceived as a way out of this perceived hypocrisy. Detainees convicted of war crimes would be held pursuant to the convictions that resulted from those trials, and not simply because of the continuation of hostilities. Hoping for relatively swift and certain convictions, the Bush Administration turned to military commissions, only to find that the Supreme Court was not, in Justice O’Connor’s famous words in a 2004 case involving a U.S. citizen, willing to treat “a declaration of war” as “a blank check for the President.”
President Obama and Attorney General Holder began their term with a plan to close the Guantanamo Bay prison and to conduct civilian criminal trials for at least some detainees. When Congress blocked those plans, the Obama Administration worked on mending, not ending, the system of military commissions.
Notwithstanding the recent ruling in the Hamdan case, perhaps the government will eventually construct a system of detention and military trials that withstands court scrutiny. But even if it does so, it surely will have failed in the Bush Administration’s original goal of providing a swift and certain alternative to the civilian criminal justice system. Nearly four years since President George W. Bush left office, and more than eleven years since 9/11, we still do not have a coherent legal approach to the global conflict with al Qaeda and its regional affiliates. Whether viewed from the perspective of civil liberties, security, or public relations, we would have been better off all along had we treated most of the captives as POWs, while subjecting the worst of them to trial in the civilian courts in which, pre-9/11, the government had a perfect record in terrorism cases.