Why Hamdan’s Material Support Convictions Violate the Ex Post Facto Clause

Why Hamdan’s Material Support Convictions Violate the Ex Post Facto Clause

As Marty points out in his post, whether convicting Hamdan of “material support for terrorism” (MST) violates the Ex Post Facto Clause will be a major issue in Hamdan’s appeal.  Having now read Judge Allred’s decision carefully, I strongly disagree with his conclusion that it does not.

Judge Allred’s framing of the ex post facto issue (p. 3) is unobjectionable: “the question here is whether “Material Support for Terrorism, criminalized by 10 U.S.C. 950v(b)(25), is sufficiently well established as a violation of the law of war.”  Equally unobjectionable is his assertion (p. 5) that because “Congress has acted under its Constitutional authority to define and punish offenses against the law of nations,” the appropriate standard for whether a war crime is “well established” is the one articulated in United States v. Bin Laden: “the acts in question are recognized by at least some members of the international community as being offenses against the law of nations” (emphasis mine).

The problem is that the evidence Judge Allred adduces in support of his conclusion that material support for terrorism has traditionally been recognized as a war crime does not even satisfy that low standard.  To begin with, consider the evidence Allred mentions (p. 3) that material support has not traditionally been considered a war crime:

1. The UN Special Rapporteur on human rights has concluded that material support for terrorism”go[es] beyond offences under the laws of war.”

2. American military tribunals have never tried material support for terrorism.

3. The War Crimes Act does not list material support for terrorism.

4. The Congressional Research Service has concluded that material support for terrorism does not appear to be supported by historical precedent.

5. Material support for terrorism is not mentioned in the Hague Conventions, the Rome Statute, or the Statutes of the ICTY, ICTR, and Special Court for Sierra Leone.

Now consider the Government’s arguments to the contrary (p.3).

1. Violations of Common Article 3, such as “violence to life and person” of those “taking no active part in hostilities,” are war crimes under the War Crimes Act.

The existence of those war crimes is irrelevant, because — as I explain at length below — they are fundamentally different than the “war crime” of material support for terrorism, 10 U.S.C. 950v(b)(24).

2. Material support for terrorism has been a violation of federal law, even when committed extraterritorially, since 1993.

That is also irrelevant — the fact that the U.S. has traditionally considered material support for terrorism to be a domestic crime does not help establish that the “international community” (or even the U.S. itself) has traditionally considered it to be a war crime.

3. UN Security Council Resolutions 1189 and 1373 condemn terrorism and require member states to criminalize it.

Yes — but they do not require member States to criminalize terrorism as a war crimeResolution 1373, the Terrorist Financing Convention, specifically requires States to ensure that “such terrorist acts are established as serious criminal offences in domestic laws and regulations.” (My thanks to John Ip for pointing this out to me.) And neither of the terrorist bombings referenced in Resolution 1189 — in Nairobi and Dar-es-Salaam — even took place during armed conflict.

4. The US is a party to twelve international conventions that prohibit various kinds of terrorism.

Same problem — the decision does not identify the particular conventions, but none of the major terrorism conventions require States Parties to criminalize terrorism as a war crime.

5. U.S practice during the Civil War supports the war crime of material support for terrorism.

Judge Allred presents evidence (pp.4-5) — Congressional documents, General Orders, military treatises — that “suggests the existence of an offense similar to providing material support for terrorism” during the Civil War.  He puts particular emphasis on a statement in an 1894 Congressional document that says, regarding “rebels… that… furnish the enemy with arms, provisions, clothing, horses and means of transportation,” that “[a]ll such persons are by the laws of war in every civilized country liable to capital punishment” (emphasis in the original).

That’s it. The sum total of the evidence in Judge Allred’s decision that supports the idea that the “international community” has traditionally viewed material support for terrorism as a war crime consists of two things: (1) U.S. practice during the Civil War concerning an offense “similar” to material support; and (2) a statement in a U.S. congressional report claiming that the laws of war in all civilized countries permit the execution of rebels who materially supported the enemy.

That evidence cannot possibly satisfy the Bin Laden standard.  At best, U.S. practice during the Civil War establishes that one member of the international community — the U.S. itself — has traditionally considered MST-like actions to be war crimes; it does not establish that “at least some members of the international community” have done so.  And the bare assertion in the congressional document is simply that: a bare assertion.  Judge Allred does not offer any examples of “civilized countries” executing rebels who materially supported the enemy, nor does Justice Thomas in his dissent in Hamdan v. Rumsfeld, which is what Judge Allred cites (p. 5) — Justice Thomas simply provides a list of American courts-martial.  Saying it does not make it so — especially when, as Judge Allred himself acknowledges, all of the international evidence (summarized above) is to the contrary.

There is another fundamental problem with the decision.  As noted above, Judge Allred concludes that the Civil War evidence suggests that the US traditionally recognized a war crime similar to material support for terrorism.  Indeed, he even suggests (p.5), referring to the “guerillas” of the Civil War era and those who “join, belong to, act, or co-operate” with them, that “in modern parlance, they might be referred to as terrorists, or those who provided material support for terrorism.”

With due respect to Judge Allred, nothing could be further from the truth.  Quoting 10 U.S.C. 950v(b)(24), Judge Allred defines a “terrorist” as:

[A]ny person… who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life…

Notice the ellipsis?  Here is the complete definition of a terrorist in sec. 950v(b)(24):

Any person… who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct.

The intent to influence government conduct is the gravamen of terrorism under sec. 950v(b)(24) — what distinguishes a terrorist act from an ordinary war crime. By itself, in other words, intentionally killing or inflicting great bodily harm on a protected person is simply “murder of a protected person” or “attacking civilians.”  That conduct only becomes the “war crime” of terrorism when that harm is, in addition, “calculated to influence or affect the conduct of government or civilian population by intimidation or coercion.”

That is a critical difference, because nothing in Judge Allred’s decision indicates that the Civil War-era crimes tried by military commissions were calculated to influence government conduct.  Indeed, the decision specifically acknowledges (pp. 5, 6) that the individuals who committed those crimes usually acted “for motives of personal profit or revenge” — the antithesis of the motivation for terrorism.  It is thus simply not true that, “in modern parlance,” persons who committed or supported those crimes “might be referred to as terrorists, or those who provided material support for terrorism.”

U.S. practice during the Civil War, in short, does not “suggest[] the existence of an offense similar to providing material support for terrorism” during the Civil War.  At most it suggests (1) the existence of the war crimes of murdering a protected person and of attacking civilians; and (2) the possibility of prosecuting a person who aided and abetted one of those crimes.

We thus end where we began, with the ex post facto standard articulated by United States v. Bin Laden and adopted by Judge Allred, according to which Congress’ power to define “offenses against the law of nations” is limited to those acts that “are recognized by at least some members of the international community as being offenses against the law of nations.”  As we have seen, not even the United States counts toward that standard regarding the “war crime” of material support for terrorism — in which case the number of members of the interntional community who have traditionally viewed material support for terrorism as a war crime is precisely zero.  Hamdan’s convictions for that crime thus violate the Ex Post Facto Clause.

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John C. Dehn

Kevin, I haven’t read the entire ruling and am not impressed with what the court portrays as the government’s argument.  I want to look at the issue more closely, but it seems to me that there is at least an argument that material support to terrorism is merely a specific instance of a prohibited indiscriminate attack (similar to how genocide is generally a specific instance of otherwise prohibited conduct under art. 7 of the Rome Statute).  The fact that it has a specific intent requirement could be argued as (1) merely more restrictive than otherwise prosecutable attacks against protected persons prohibited by IHL and (2) necessary to properly define the terrorist act as an act of war.  As Clausewitz said, and I am paraphrasing, ‘war is the continuation of politics by other means.’  The political motivation (as one could argue describes the specific intent provisions) of the terrorist act could be argued as essential to distinguishing the act as one of war by a non-state actor vs. a random criminal act. If this is all a fair reading, and I am only saying it might be, then material support to such acts could be viewed as participation in a joint criminal enterprise to… Read more »

Jennifer Elsea
Jennifer Elsea

I thought the difference between bushwackers, guerrillas, marauders and the like on the one hand, and partisans, on the other, was that the former groups operated on their own authority rather than that of a belligerent party. While Partisans were considered a public enemy, bushwackers etc. weren’t.  In other words, the bushwacker types were just civilians who were taking advantage of the wartime chaos for personal gain.  They were treated as common criminals and punished (sometimes as directed by military commission, although civilian courts could be used as well).  While many authorities refer to such offenses as “violations of the law of war,” it wasn’t really a “war crime” as such, because no belligerent party incurred responsibility for the actions.   It seems to me that if al Qaeda is considered a party to the armed conflict, the analogy of its members to Civil War era bushwackers in inapt.  From what I recall, military commissions were used for “violations of the laws and customs of war” like providing contraband to the enemy and other sorts of supporting activities, but civilians charged with such crimes resided in Union States. See, e.g., Davis, A treatise on the military law of the United States : together with the practice and procedure of courts-martial and other military tribunals.  310 and… Read more »

Bart DePalma
Bart DePalma

The military is arguing that the common law of war prohibited as a war crime the conduct of providing material support for terrorism and that common law was merely codified by the MCA. Western common law of war has recognized terrorism in the form of piracy and brigandage as a malum in se war crime since at least Roman times, whose perpetrators withdrew themselves from the realm of humanity and could be warred upon and summarily killed by all peoples without fear of “punishment nor moral anguish.”  Mikkel Thorup provides some of the numerous authorities for this proposiiton in a talk entitled “The horror of the ’enemy of humanity’ – on pirates, terrorists and states” which he delivered at Mansfield College, Oxford last year. Lincoln codified this millennium old common law of war to Confederate terrorists/brigands in Section IV of his General Orders No. 100, prescribing execution for these marauders. Moreover, western common law universally has recognized accomplice liability for both civilian and war crimes. War crimes most certainly are not limited only to those who personally commit the murders and other atrocities. For example, the Nuremberg trials indicted Gustav Krupp (not tried for poor health) and convicted Albert Speer, Walther Funk and… Read more »

John C. Dehn

Jennifer, The question of marauders is separate from this discussion so far as I am concerned.  You are correct regarding the focus of military commissions.  In addition to Winthrop, Military Law and Precedent, there are good recent articles by Glazier and Bickers (not that I fully agree with either). The essential issue is whether a non-state actor can engage in war.  The answer to that in both domestic and international law is yes.  Art. 1 of AP II provides a non-exclusive set of criteria for that as a matter of international law.  The best examples of that in U.S. law (to my mind) are the Indian Depredation Act cases, and now the 2006 S.Ct. Hamdan case.  The Prize Cases also establish the principle that belligerent (or “public enemy” if you like) status can be conferred on an armed group otherwise not a “state” under international law, at least in the context of a civil war.  There is an open question regarding who has power to do that.  Milligan did not address the central issue of the MCA military commissions or the issue being discussed here.   It addressed whether the citizen of a loyal state during the Civil War could be subjected to military tribunals in the… Read more »

Benjamin Davis
Benjamin Davis

With all due respect to all the persons gnawing on the particular bone of the ex post facto nature or not of the crime alleged, I think that walking down that path takes us the wrong way in thinking about Hamdan.  The reason is that the whole structure is a Potemkin trial with lots of legalness (in the sense of “truthiness” as used in the Colbert Report) in judicial forms that are not judicial norms.  The upstanding jurors making their solemn decision are right out of central casting in this process.  That he would be convicted is all predictable.

I put up on ssrn an essay at 4h00 on Tuesday (so before the verdict) entitled “No Third Class Processes for Foreigners”  which highlights the perverse nature of all of this – including what may or may not happen at the Supreme Court.

The abstract is at http://ssrn.com/abstract=1205666

Best,
Ben

Benjamin Davis
Benjamin Davis

Sorry could not edit but here it is.

No Third Class Processes for Foreigners

Benjamin Davis
University of Toledo College of Law

Northwestern University Law Review, Forthcoming

Abstract:     
This essay responds to an essay of Professor Gregory S. Mcneal with regard to improvement of the military commissions created pursuant to the Military Commission Act of 2006. This essay discusses why the military commissions are intentionally structured in this flawed way, the separate and unequal third class process for foreigners, and the troubling example of the Hamdan military commission. I conclude that reform is meaningless and make suggestions for a different perspective.
 


Keywords: Hamdan, Military Commissions, Torture, Fifth Amendment, Insular Cases, Constitution, Boumediene, Ross, Guantanamo, national treatment, international minimum standard of justice, courts, courts-martial, coercion
Accepted Paper Series
Date posted: August 06, 2008

Jennifer Elsea
Jennifer Elsea

John,

I brought up marauders because Judge Allred’s opinion suggested that that crime is sufficiently analagous to material support of terrorism to demonstrate the latter is a violation of the law of war.  I was merely pointing out why it might not be.  And to the extent that civilians during the Civil War were charged with crimes similar to provision of support to terrorists, Milligan demonstrates that the Supreme Court apparently did not regard it as a violation of the law of war.  Were any actual enemies charged with providing support to the enemy in violation of the laws of war (that didn’t involve personally committing acts of violence)?  

 The Quirin saboteurs’ crime was crossing our lines of defense in disguise, etc.  (There were lots of cases like that during the Civil War, too, I think.)  Was Hamdan accused of anything like that?

John C. Dehn

Jennifer, I think you made the point very well that the marauders, pirates and the like are not objects of IHL as Bart suggests.  They violate the universal common law (see Blackstone, as well as Bart’s reference to malum in se), not the common law of war (see Lieber and Winthrop) which now must be thought of in terms of customary IHL (to account for the positive law movement).  It is interesting how many folks are fond of “undemocratic” common law when it suits their needs, but decry it, international law, and customary international law when it doesn’t.  (This comment is not directed at you Bart.) This, though, gets to the issue of the different types of military commissions, best outlined by Bickers (citing Winthrop extensively).  In the Civil War, military commissions were used to prosecute various common, or non-IHL crimes in enemy territory.  Their constitutional status was addressed by the Sup.Ct. in Fleming v. Page before Milligan.  Those two cases must be read, in full, togehter.  The fact that it happened, though, created confusion regarding the types of crimes that could be tried by military commission and under what circumstances. Hamdan was not charged with anything like Quirin.  Quirin is relevant to the domestic use… Read more »

Benjamin Davis
Benjamin Davis

The use of military commissions to try common law crimes as well as laws of war crimes in the South comes from a necessity argument – the Southern courts were not open to treat either crime or war crimes in the occupied area.  Stevens in Hamdan starts there. Neither of those necessity arguments apply to Gitmo even if such tribunals are statutorily permitted. With courts and courts-martial very much open to try these people the ordinary crimes aspect of these crimes appear inappropriately before these military commissions.  On the laws of war side, we see that the international law of war does not include this type of crime.  Conspiracy was charged at Nuremberg but if my memory serves me right, no one was convicted on that ground as they could not find conspiracy – leaving to aside the JCE discussion (see below). The military commissions role in the Civil War is an internal set of rules )one state’s domestic practice) of no moment on international sphere.  This particular set of crimes and military commissions being a US domestic law construct purely, I am not sure that much is added by seeking to analogize from one state’s practice. Imagine that Yemen was seeking to… Read more »

John C. Dehn

Ben, I might agree with you but for the fact that the for the most part the US understanding of the law in this area pre-dates its becoming a superpower.  Further, current IHL is not entirely clear.  IHL has become confused on many of these points, not merely from US practice.  AP I added as much ambiguity as it did clarity. As to your necessity point, I do tend to agree with you but for reasons that are deep in the Constitution and case law on this subject.  I hope to bring them out (in a way that has not been done yet) in future work.  Still, the answer is far from clear even when one understands the relevant case law.  I disagree slightly with your assertion that Civil War practice has no bearing on current IHL.  I agree more fully on the issue of its relevance to law of war military commissions.  In the end, the practice does create a lot of confusion. I have no intention of stretching IHL.  I merely wish to more fully and fairly consider the substance of what Congress has done and not dismiss it based on any disagreement folks might otherwise have with it… Read more »

Charles Gittings

Well I have some comments… * Excellent post Kevin. * I think folks are missing some of the most significant precedents: During the Boer War, the British resorted to a scorched earth policy of destroying Boer farms and interning Boer civilians in concentration camps (the origin of the term) where thousands of them died of starvation, disease, and neglect. The principal reason for this policy was to deprive the Boer “commandos” (semi-independent cavalry militias) of the logistical support those farms provided. Note that the British policy included providing less food to the families of Boer soldiers who were still actively fighting. The internment, use for slave labor, and exterminiation of the Jews by the Nazis was predicated on the alleged existence of an international Jewish conspiracy against the German state etc. Vast numbers of people interned by the Soviets in the Gulag were there precisely for the reason of alleged “counter-revolutionary activities”. Then we have our own treatment of Native Americans here in the United States on similar grounds, and our treatment of Filipinos during the so-called “Philipine Insurrection”. This is NOT a pretty picture. Emily Hobhouse wrote a book about her investigation of conditions in the British camps in… Read more »

Bart DePalma
Bart DePalma

I think you made the point very well that the marauders, pirates and the like are not objects of IHL as Bart suggests.  They violate the universal common law (see Blackstone, as well as Bart’s reference to malum in se), not the common law of war (see Lieber and Winthrop) which now must be thought of in terms of customary IHL (to account for the positive law movement). Across the western world, pirates and brigands have been long recognized as military combatants, who by their actions have placed themselves outside the laws of war – thus the term unlawful combatants.  See ,e.g., Cicero’s De Officiis (44 BC); Belli’s De Re Militari Bello Tractus (1563); Auyala’s De Iure et Officiis Bellicis et Disciplina Militari (1581); Gentili’s De Iure Belli Libri Tres (1589); Bacon’s Advertisement Touching An Holy Warre (1629); Bodin’s Les six Livres de la Republique (1577); Grotius’ De Jure Belli ac Pacis (1625); Vattel’s Droit des gens (1758), Lincoln’s General Order 100 (1863). The positive treaty law making up the IHL implicitly recognizes this category of unlawful combatants and only makes marginal changes in the customary laws of war which apply to such combatants.  None of the treaties which make up the IHL states that the customary laws of war have… Read more »

Charles Gittings

John,

“In the Civil War, military commissions were used to prosecute various common, or non-IHL crimes in enemy territory.”

But the reason for using them was that the regular courts were unavailable, not to prosecute ad hoc charges and / or evade due process and judicial review.

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[…] to justify elevating “material support for terrorism” to the level of a war crime, despite no precedent for doing so — but it must surely come as a relief to those who thought that the jury might […]

Benjamin Davis
Benjamin Davis

John, I take your point but, if you would permit, I would encourage you to be a bit more careful with the “US understanding.”  The reason for that is that the current administration has its teased understandings of just about anything that comes out of international law from what I can see.  The words of the space are used but the substance of what is in the idea is quite foreign from what the words essential meaning has been.  This particular game is what I would call U.S. national security law interpretation of the rule vs.  international plane interpretation of the same rule of international law. One can speak of several types of US understanding.  For example, the US understanding of international law of this administration would appear to have stopped about 60-70 years ago at Quirin going backward.  That understanding is all in terms of national security law.  That understanding only takes into account things outside of that sphere to the extent that there is pressure to have them take it into account.  The views that we have lived with for these seven years certainly do not include the Geneva Conventions (I think it is striking that the MCA explicitly removes the ability… Read more »

Bart DePalma
Bart DePalma

Salim Hamdan’s sentence signals the end of Guantánamo | Andy Worthington

Hamdan’s remedial detention for the duration of the conflict and his punitive sentence for war crimes are unrelated.  The sentence does not legally place a cap on his detention as a generic prisoner of war.  However, it will be interesting to see what the military decides to do with Hamdan after he serves his sentence.

Diplomatic Gunboat
Diplomatic Gunboat

Sen. Webb critiques harshly the political/military compromises behind Gen. Yamashita’s trial in his book The Emperor’s General.  As Goldsmith does with Quirin, Sen. Webb suggests that the affirmation of Gen. Yamashita’s conviction stemmed more from politics than justice. 

Sen. Webb approvingly quotes Justice Murphy’s dissent in Yamashita:  ‘The high feelings of the moment doubtless will be satisfied. But no one in a position of command in an army, from sergeant to general, can escape these implications. The fate of some future president and his chiefs of staff and military advisers may well have been sealed by this decision.’

If it matters, Sen. Webb wrote the book in his pre-Senate (maybe even pre-Democrat) days. 

The point is that broadly conferring criminality on an opponent will establish a precedent which may well be used against oneself.  It is not coddling terrorists to advise caution and restraint in such matters.

John C. Dehn

Bart, Grotius and de Vattel are based in principles of natural law.  Both permit many things that are no longer permitted or recognized by the law of war (modern Int’l Humanitarian Law) or customary int’l law.  Modern IHL has made strides to distinguish between which non-state entities may be considered to be engaging in what Grotius termed public war, and hence subject to the rights and duties of IHL, and private war subject to domestic or general international criminal law for their acts of violence.  Merely labeling folks as “combatants” as you have done, without understanding this very important distinction, blurs the line beyond recognition.  They are not “military” combatants any more than are gang members in LA.  Those engaging in private war are not belligerents.  This is, I believe, the essence of Jennifer’s earlier point.  Emphasizing the political nature of terrorism by a sufficiently organized group (Winthrop said the customs of war apply to hostile nations or peoples) is, to my mind, the only plausible way to bring it within the scope of public war and IHL.  This is what underlies the art. 1, AP II requirements. Please cite, if you can, an IHL source of authority for your assertions that the… Read more »

Morris Davis
Morris Davis

The jury sentenced Hamdan to 66 months.  The judge gave him credit for nearly 61 months of time served, so he has less than 6 months remaining on his sentence.  Hamdan won in the Supreme Court in 2006 and ended up back in his cell.  He won again a little over a year ago when Judge Allred dismissed charges because the word “unlawful” was missing from the CSRT determination, which is required for MCA jurisdiction.  Again, Hamdan won but ended up back in his cell.  This time he lost, but in the end losing may equate to winning.  It remains to be seen whether the administration intends to keep Hamdan past the end of his sentence; doing so begs the question of why we even bother to hold trials.  If you look at Hicks (9 months) and Hamdan (<6 months) it suggests the best way to win at Gitmo is to lose. 

Benjamin Davis
Benjamin Davis

Bart, I take the point that pirates etc (“private [persons]” to take Grotius’ statement of the law on this)  back to antiquity could fight wars against princes.  And so they could be charged with the laws of war crimes.  They could also be charged under universal malum per se.  They could also be charged under a state’s domestic law (murder, mayhem, property destruction) like any other person committing a crime. The point to me is four headed: 1) defining Al-Qaeda types as “pirates, marauders etc” that you do. 2) what forms the laws of war that the Military Commissions are supposed to prosecute 3) what forms the malum per se universal law stuff and 4) domestic law applications We can see all three of these (international law definition of pirates, laws of war, and malum per se) three of those on the international plane and the fourth (domestic law) on the domestic plane.  For me, what you are saying is that the Congress is following a US interpretation of all of these things to permit the Military Commissions to prosecute on any of the three international law bases. What you keep coming up against for these persons is the principle of legality in… Read more »

Bart DePalma
Bart DePalma

John: Grotius and de Vattel are based in principles of natural law.  Both permit many things that are no longer permitted or recognized by the law of war (modern Int’l Humanitarian Law) or customary int’l law.  Agreed.  However, in the case of terrorism, this interpretation of natural law and the customary law of war addressing terrorism are the same.  My point was that treaty law has not changed this particular customary law of war, regardless of how it has affected other such law. Modern IHL has made strides to distinguish between which non-state entities may be considered to be engaging in what Grotius termed public war, and hence subject to the rights and duties of IHL, and private war subject to domestic or general international criminal law for their acts of violence.  Merely labeling folks as “combatants” as you have done, without understanding this very important distinction, blurs the line beyond recognition.  They are not “military” combatants any more than are gang members in LA.  Those engaging in private war are not belligerents.   The Geneva Conventions III, Article 4 and the proposed Protocol I recognizes the regular military forces of nation states fighting for the purposes of their governments and… Read more »

Bart DePalma
Bart DePalma

Ben: I think the root of our disagreement is that we are starting from two very different default starting points. The default starting point for government treatment of a civilian member of the People is that the person is considered innocent until proven guilty and the government may not deny the person of life, liberty or property without the due process of law. However, the default starting point for government treatment of a foreign enemy combatant in a war is killing or detaining the enemy on sight and either destroying or seizing his property without any due process.  The right to be held as a POW for the duration of the conflict is considered to be a privilege which serves the remedial purpose of keeping him from further killing or contributing to further killing in war. You come from the former default starting point and this ex grunt comes from the latter. You view the military commission as an abridgment of civilian due process rights, while I view the due process provided to Hamdan to be an extremely generous act of charity, sparing the life and apparently a large period of his liberty of an enemy combatant that would have been forfeit on the… Read more »

Benjamin Davis
Benjamin Davis

Bart, I hear you my friend and part of my education as a non-ex grunt who had uncles and a dad who are/were ex-grunts (none died in war) has been to try to connect to that ex-gruntitude and gruntitude in a way that is respectful and not cavalier. I can see the holding someone to keep them off the battlefield so they do not go back to kill me or others like me. If they have the POW status I see acting in accordance with that status. If they do not have the POW status, I see holding the person as a security detainee. If they have done awful things, I can see them being prosecuted for things that are war crimes (POW could not do it or non-POW could not do it) or things that are crimes under domestic law. In a situation of necessity (like courts not being opened or being in an occupation zone), I can see the merits of using a military commission because of the necessity. I think so far you and I are in the same place. On the view of the military commission as a kind of grace, I see the basic deal… Read more »

Diplomatic Gunboat
Diplomatic Gunboat

Col Davis,

Thank you for speaking truth.  It mattered.

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[…] justify elevating “material support for terrorism” to the level of a war crime, despite no precedent for doing so — but it must surely come as a relief to those who thought that the jury might […]

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[…] but I am a certified (certifiable?) Law Geek, and I agree with Kevin Heller of Opinio Juris that there are strong grounds for appeal.  But if I were Hamdan’s lawyers, I would be trying […]

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[…] may not fall within the traditional boundaries of the laws of war. (Indeed, this could very well end up being a problem for the government if and when Hamdan's conviction is appealed.) But, in a broad sense, justice […]