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 crime. Resolution 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.