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

by Kevin Jon Heller

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.


27 Responses

  1. 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 commit indiscriminate attacks in violation of IHL.  The problem is that JCE is not generally an independent crime, it is a form of complicity.  I am not sure the form of the offense as defined in the MCA necessarily fits within it.

    I am just throwing this out there as something that comes to mind.  It is hard for me not to view 9-11 as an act of war.


  2. 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 n.2 (2nd ed., rev. New York, 1899, c1898). Allegiance to the United States would likely have been an element of the charge in such a case.  (And anyway, didn’t ex parte Milligan effectively put an end to that sort of thing?)

  3. 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 Julius Streicher for support of various Nazi war crimes which they did not personally direct or perpetrate under what are essentially theories of accomplice liability.
    Thus, Hamdan’s military prosecutors and Judge Allred were quite correct to note that common law or war accomplice liability as applied to the supporters of Confederate brigands pursuant to General Orders 100 during the Civil War was an example of “the laws of war in every civilized country.”

  4. 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 face of an act of Congress directing that such cases be sent to the Art. III courts.  The majority said “no” unless the state of armed conflict had basically closed the courts.  (The infamous and oft-selectively-read concurring opinion said Congress could authorize it, but hadn’t in that case. If I remember correctly, both opinions – but definitely the majority – noted that a civilian grand jury failed to even indict Milligan.) 

    Quirin is the most relevant precedent.  It distinguished Milligan on domestic use of military commissions in large part because the “enemy combatant” status of defendants was clear.  (Some scholars – such as Goldsmith – also claim that political pressure forced the Court’s hand.)  Yamashita also reviewed the traditional domain of military commissions in the course of its opinion, and is relevant to the question of what may be properly considered a law of war violation.

    The bottom line question here, implicit in my earlier post, is whether the substance (not the label) of Hamdan’s conduct was reasonably believed by Congress to be a violation of IHL.  That question might turn on the JCE issue that I identified above, assuming the rest of my analysis is accurate. 

    There is another issue, though, being missed here.  I am also writing about that right now, and hope to have it out before Hamdan’s appeals are complete.

    Best to all,


  5. 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


  6. 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

    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

  7. 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?

  8. 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 QuirinQuirin is relevant to the domestic use of military commissions, the issue raised in Milligan, and the punishment of unlawful combatants under IHL.  I only brought it up because you brought up Milligan and seemed to heading in that direction.  On the point of what constitutes a violation of IHL, I think Yamashita is quite instructive.

    Milligan somewhat supports the point you make on IHL, but is better related to “aiding the enemy” as a domestic offense, the issue brought up by Scalia’s dissent in Hamdi, I think.  This is all, to my mind, somewhat beside the point.  It probably came up because it was argued that way, inappropriately I think. 

    The sum and substance of the MCA’s terrorism (and material support) offense is that of using violence against persons protected by IHL to effect political goals.  (Using violence to effect political goals would implicate Clausewitz’s understanding of war.  War also predates the existence of nation-states and so is not limited olny to violence between nations.)  My point is that the only way that all works as an IHL violation is if you view “material support” as participation in a JCE (a clearly recognized complicity theory in IHL) to violate IHL.  But JCE only creates so-called vicarious liability for completed offenses, which may not be how the MCA’s material support offense works.

    We must not confuse or conflate the issue of whether Hamdan was a combatant or belligerent subject to the jurisdiction of a law of war military commission with the issue of whether his conduct constituted a violation of pre-9-11 IHL.  The argument I am advancing here only relates to the latter.  A JCE to violate IHL can include non-combatants…see Nuremberg.  The jurisdiction of international military tribunals, however, is not necessarily co-extensive with that of law of war military commissions, which are limited to combatants/belligerents.

  9. 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 assert diplomatic protection for Hamdan as their citizen.  These internal law rules of the US military commissions are of no interest to Yemen and they could assert that the US has violated the principle of legality and IHL by treating Hamdan in this way.  Yemen would assert a breach of international law by the United States.  All the US precedents in that setting would simply not be persuasive.  Yemen would object that Hamdan was not given either national treatment or an international minimum standard of justice.  Of course, the US is powerful enough and Hamdan a small fry enough, that the dance of states is uninteresed in him so no know efforts of diplomatic protection have been done.

    I would expect that the ICRC in its confidential discussions with the United States is raising these precise concerns about the charged being raised against the Al-Qaeda types.

    As to JCE and vicarious liability – it appears using that concept tries to stretch an international law veneer on what is essentially a purely domestic rule that Congress has stretched to capture Mr. Hamdan.  I think we do not need to struggle in that way because that kind of struggling is precisely part of enabling those who carefully have crafted this tribunal, these charges, etc. to make it look like something legitimate has happened.

    As to piracy and brigandage, universal international law malum per se, my worry is that going down that path is one more step in decoupling these persons from all the protections of IHL and Human rights.  To get there you have to swallow into piracy and brigandage these guys.  If we look at pirates in the Straits of Malacca or off the Horn of Africa, they seem very different from these Al-Qaeda types.  Calling them pirates to redefine the term to have them be subject to universal common law malum per se would seem to me to be a further effort to rejigger international law (we have been there with the GC, torture and the rest of it) by sophisticated lawyers trying to create a national system that will leach out to the international realm.

    We should be very careful about taking international law definitions and trying to leach into them approaches being pushed out by the US practice.  It is a way for us to “make sense” of what is going on but I would suggest the better way is to understand this as one state’s practice – deviating from international law – and see it as sui generis actions by a powerful state.


  10. 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 as a matter of policy.  We should fully and fairly consider the arguments for and against it before passing judgment.  I responded to this post because folks here and elsewhere appeared to be focused too much on the label of the offense and not its substance, which at least arguably has a basis in IHL. 

  11. 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 South Africa which is available on-line, see:

    Methuen & Co. (London 1902), available at:


    The correspondence between the opposing commanders in the (2nd) Boer War (Lord Roberts and General Botha) regarding the British policies is quoted in full starting at page 29, and is well-worth reading.

    * The “common law of war” is more usually described as the customary law of war, and bears about the same relation to this discussion as the English common law does to Federal law — not much.  In fact, Hague IV 1907, the IMT Charter of 1945, and Geneva 1949 explicitly and comprehensively codify the customary laws of war, and the Martens Clause (Hague IV 1907 preamble) looks forward to better laws, not backward to past barbarism.

    * Hague IV 1907 annex of regulations art. 23[h] states:

    “In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”

    The significance of 23[h] is obvious: the express purpose of the government from the outset has been to deny that the detainees have any rights at all. The significance of 23[i] to the government arguments regarding their need for information extracted by abuse and torture is equally apparent, as well as the ad hoc procedures of the “military commissions” is obvious. Any violation of Hague IV 1907 annex art. 23 is a federal offense pursuant to 18 USC § 2441(c)(2).

    * With regard to the customary laws of war and ex post facto law, it should be noted that the very first treaty the United States concluded on the subject states:

    “* * * it is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this & the next preceding article, but on the contrary, that the state of war is precisely that for which they are provided, & during which they are to be as sacredly observed as the most acknowledged articles in the law of nature or nations.”



    The modern Hague and Geneva conventions contain similar provisions.

    * Regarding the treatment of captured pirates, note article 9 of the British Royal Navy Articles of War (1749):

    “If any ship or vessel be taken as prize, none of the officers, mariners, or other persons on board her, shall be stripped of their clothes, or in any sort pillaged, beaten, or evil-intreated, upon the pain that the person or persons so offending, shall be liable to such punishment as a court martial shall think fit to inflict.”

    * The use of properly constituted military commissions is not a precedent for unlawful ones. The use of unlawful procedures is a war crime in and of itself. See Evan J. Wallach, “Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?”, Army Law., November 2003, at 18.

    * The Quirin ‘military commission’ was simply bogus and unlawful. FDR wanted to impose the death penalty when the maximum penalty under federal law was 15 years, and the government also tampered with the US Supreme Court, among  so many other other glaring defects. It deserves no respect at all.

  12. 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 been rescinded and only the treaties which make up the IHL shall have legal effect.

    The Geneva Conventions implicitly recognizes a category of unlawful combatant by limiting the privileges of prisoners of war to irregular forces who wear uniforms, carry weapons openly and otherwise follow the laws of war.

    The international community did not consider terrorists and the like who fall outside of Article 4 to be civilians rather than combatants as some have suggested.  Protocol I was offered in 1977 to extend POW privileges to terrorists and other combatants who fell outside Article 4.  However, the United States rejected this Protocol as did much of Western Europe to one degree or another.  Thus, Protocol I cannot be thought to have changed US customary laws of war as applied to terrorists.

    The GC III, Article 3 did change the customary law of war as applied to unlawful combatants by setting minimum standards for treating any combatant prisoner regardless of status and requiring a trial before executing the prisoner, which is a change from the summary executions which were traditional for pirates and brigands.

    The Law of the Sea Treaty also established IHL standards for the treatment of seagoing pirates, but cannot be thought to extend to brigands or terrorists on land such as Hamdan.

    Consequently, it is reasonable to assume that the millennium old customary laws of war addressing unlawful combatants such terrorists remained in force when Hamdan provided material support for terrorism and later when the MCA codified the same.

  13. 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.

  14. 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 to invoke the Geneva Conventions).  The GC’s come into play only when the Supreme Court requires it do so.  Customary international law is just seen as “raw law” in McGinnis-Somin formulation that can be ignored a la Paquete Habana.

    To the extent words from that international law have to be used they are redefined.  For example, did you hear about Iraqi security detainees being placed in 3 by 3 by 6 foot boxes in Iraq today?  The American officer who was quoted on this said that this was humane treatment and that they are checked every 15 minutes.  Putting someone in a box for any period of time in Iraq is considered humane treatment.  You need to think about the disconnect between the form (the word humane) and the substance (a person shut up in a box) to see the misuse of the term humane.  Humane is given a national security law bent that has no relation to its meaning in international law.

    That is the kind of splitting of thinking that is required to get at US understandings.

    Going back to Quirin, we can look at he unlawful enemy combatant language coming out of the Civil War experience etc and see that plenty of people who can be englobed in that definition and who have not been given any POW rights (let’s just start with the Taliban under categories other than ARticle 4(a)(2)). are entitled to them.  Unlawful enemy combatant = US national security law word.  POW = international law plane word.  US asserts words that permit it to extract people from the protections to put them in a hermetically sealed space.

    On the Civil War practice, it is not that it has no bearing.  It is rather that with Hague and Geneva much has developed since Lieber’s Code.  To pick the Civil War period is to do the thing that is going on now which is to cherry pick from an epoch and say “you see that is the law of war”.  None of the development in the ensuing years in international law will be included in that approach.

    I respect your willingness to more fully and fairly evaluate what Congress has done.  I really have no dog in this fight except I would suggest that the essence of what is going on is a policy of cruelty (Alberto Mora’s phrase) decided shortly after September 11 and then a consistent effort to keep it away from our eyes.  The effort to shield us and keep the persons we have captured in a space where they are without any rights recognized by us is the heart of it.  Now we are sophisticated and can create clean teams who can honestly say things after the dirty teams operated.  We can jigger a military commission system that does things that look like a judicial process and have in it jurors who seem to be making independent justice, but the whole thing is really a situation of cooked books once the evidentiary standards are pushed down.

    Believe me, I have a great deal of respect for the legal minds that put this stuff in place.  They are bright even though ultimately I think they are quite perverse.  So as you go about making a more full and fair evaluation in what I suspect will be an excellent and sophisticated understanding of what is going on, I just hope you will listen to me saying that “off stage” in fact it is just a policy of cruelty.  I think that when it all comes out it will be that very painful realization for all the persons who try to be fairminded. 

    To give you a hint, I think that Judge Robertson July 18, 2008 ruling denying the preliminary injunction comparing parts of the MCA evidence standards to Chambers v/ Florida (1940) is a telling point.  Go look back at Chambers and read Justice Black’s opinion.  It is convenient today to say we are not capable of that kind of stuff anymore, but in fact that is what we have been doing for years now to thousands of people – whether innocent or guilty.

    As Kurtz said, “the horror, the horror”.  Try to face the horror in it also, my friend, and do not let it drive you insane.  It is very hard to do especially when you are someone who loves your country.


  15. 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.

  16. 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.

  17. 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 conduct of marauders and pirates is governed by IHL rather than domestic or general international criminal law.  The Lieber Code/Lincoln’s G.O. 100, art. 82, considers the folks you mention to be outside the scope of public war (“without being part or portion of the organized hostile army”) and therefore common domestic or international criminals (“highway robbers or pirates”).  It does not in any way say that they are subject to or have violated IHL.  The UNCLOS is not an IHL document.

    All the best,


  18. 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. 

  19. 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 domestic and international law.

    If you can stuff these Al-Qaeda types into the categories and stuff the categories into a law of war Military Commission you can “ta da” get the principle of legality covered.  Under the “define and punish” Constitutional power, in doing that, Congress can even say, as it did, that it is merely codifying the laws of war here. 

    You see Congress can say the earth is flat – it is its power to say all it considered necessary and proper under its powers that gets a majority of both houses and is not vetoed by the President.

    Even leaving to aside the Protocol I discussion and whether parts of it are customary international law, the point is how to shoe-horn these terrorists into categories that permit you to bring a conspiracy charge of this kind under the laws of war. 

    MCA is the shoehorn from domestic law.  Now if all the charges against Hamdan had been prosecuted before a court there would be no problem with having the mix of laws of war, malum per se and domestic law dealt with (not so sure about the courts-martial on the domestic law part).  But we did not want that because the regularly constituted tribunals would have looked a bit harder at the policy of cruelty making the evidence too fragile to get a conviction.

    The military commissions were sold as laws of war tribunals but the breadth of what they can do was made larger than that of laws of war tribunals where necessity did not require them to replace all civilian courts (occupation zone and/or courts closed). 

    Congress could have written the law to say these military commissions could cover laws of war and the other crimes if they wanted to but they came up against the principle of legality point on the international plane too. 

    So redefine the laws of war and say you are only doing laws of war stuff.  Brilliant!  That is one of the innovations here folks.  It is an innovation that is all in national security law – not international law – and is a state practice by a powerful state that it hopes will leach to other places.

    If other state accept that laws of war, malum per se, and domestic law crimes are all to be dealt with by military commissions not in situations of necessity and created to deal with laws of war then we have blurred the role of commissions as opposed to courts and courts-martial.  We are free to do that internally unless the Judiciary takes the step of saying the laws of war are – well – the laws of war and these crimes do not form part of it.  Stevens said as much about the PMO version of this in Hamdan 2006.

    If this blurred version does leach to the international plane then we shift the laws of war.  Each successive shift effort may or may not succeed.  We may be able to expand in this area what is in the laws of war, but face resistance on the redefinition of torture, or on who is covered by the Geneva Conventions.  It is a multiform discussion we are in with the world.

    That is the subtle and sophisticated game that is going on with very bright lawyers at work to make it happen and trying to convince us that there is nothing going on here but just ordinary stuff.

    As Americans watching this, we can ask ourselves is this way of acting good for America.  If we think so, we acquiesce.  If we do not, then we resist.  My personal feeling is this kind of extraordinary heavy lifting has at its heart a desire of individual self-preservation by the persons who put in place the policy of cruelty.  Put another way, if the law was as it had been, crimes were committed by Administration officials – serious war crimes and lots of other things.  

    The beautiful thing about it is that the Administration types can assert they are doing this to protect America when what they really are doing is doing this to protect their own asses for what they permitted to occur.  They may even think that what they are doing is really about protecting America.

    The torture has to be hidden and the MCA is one more link in the effort to create a system to make the victims of torture (KSM et al) be executed or get long sentences.  Hamdan was the trial balloon to get a few rulings that will permit that enough evidence is brought in to guarantee a conviction by even fair minded jurors.  It’s a tease on justice. 

    We are not duped.



  20. 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 irregular military forces fighting for their own purposes both as military combatants.  
    You suggest a further subdivision of irregular forces which considers those who act for political reasons to be combatants in a public war and those who act for other reasons such as plunder to be civilians engaged in a private war.  However, I do not see any such distinction in the GCs or other treaties.  Moreover, the US has not recognized such a distinction in either of the Barbary Wars or the Civil War.  General Orders 100 made its determination of who qualified as an unlawful partisan based upon their acts, not their motivations.
    In any case, even if you are correct, the movement which al Qaeda is a part definitely to has a political goal to establish a new theocracy over the Middle East and then the World.  Thus, they would qualify as combatants under your approach.

    The Lieber Code/Lincoln’s G.O. 100, art. 82, considers the folks you mention to be outside the scope of public war (”without being part or portion of the organized hostile army”) and therefore common domestic or international criminals (”highway robbers or pirates”).  

    I would suggest that you are making an unwarranted assumption that the customary laws of war do not consider pirates and highway robbers (brigands) to be combatants in a war.  There is no indication that General Orders 100 was an authorization to enforce civilian criminal law.  Rather, Section IV of the General Orders speaks of “Partisans” and “Armed Enemies.”  These are military terms for irregular military forces.  The fact that the General Orders equates irregular military forces with pirates and highway robbers further supports my argument that the customary law of war considered the latter to be military combatants.
    Thanks for the conversation.

  21. 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 battlefield.

    From a utilitarian perspective, I would suggest that it is exceedingly unwise to treat an enemy combatant as a civilian criminal defendant.  Under civilian criminal law, you are deciding whether to punish the perpetrator after the fact.  Thus, one can afford to release ten guilty people so that one innocent person is not punished.  However, the equation fundamentally changes when you are at war.  Holding an enemy combatant as a prisoner of war is not meant to punish the prisoner for past acts.  Rather, it is meant to serve the remedial purpose or keeping him from killing in the future.  Thus, if one releases ten enemy combatants to prevent one civilian from being mistakenly detained, you sacrifice the lives of all those people the released enemy combatants will kill.

    I do not assume that my argument will persuade you.  However, I think you should realize that there are other legitimate contrary perspectives on this issue.

  22. 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 is that you have the right of self-defense if you are fighting the guy (troops at the checkpoint could have opened up on Hamdan if he did something that was threatening). 

    But, once the person is hors-combat then you have to deal with them.  If a POW, ok deal with them according to that.  If a security detainee (because of what they did before you captured them or what intelligence told you they did), then hold them.

    To have a crime in any system you have to have facts that occurred before the point of capture that amount to a crime.  War crimes trials, criminal court cases, courts-martials all have that predicate.  Someone is alleged to have committed a crime and the question is whether you can prove it.

    For me, just because a guy is a bad guy does not mean that judicial forms can be twisted too much.  There is a great deal of bad history on that.

    Now, if you can not charge him with a crime, and you are in the armed conflict setting, you hold him until the end of the conflict (or until you determine you can release him early).

    Congress is free to make up a crime and say that it was a crime at the time the person did it.  But let us understand that as just being national security law and not think that it is some kind of international law. 

    (Our courts might call Congress on this though for foreigners our courts may do wink wink (Yamashita is for foreigners not US generals – see Medina acquittal court-martial).)

    I prefer that approach because then we see what is happening for what it is – we do not let things leach into international law from the acts of one state under the guise of this being “really international law.”

    Congress wanted to make a military commission up – so be it.  Congress wanted to say it was codifying the laws of war and that those laws include a conspiracy crime – so be it.  Let’s just label it what it is – domestic law stuff, not international law.

    I hear you Bart as saying that the military commissions covering all this space is fine with you as they are an act of grace.  To me, unless they are in a setting where there is a necessity for them (like the consular tribunal in Ross) they are a threat to liberty as I am just a good old American suspicious of my government in war and peace.  Too many bad stories even though I love this country.

    What the military commissions sound like to me though is just CYA institutions to cover the policy of cruelty.  That is really all it is about for me, CYA by civilians who will do anything for self-preservation.  You know, the Rear Echelon MF’s we talked about on another occasion. They are not warriors which is the heart of the ex-grunt thing.

    Not sure if that captures it, but I hope it gives some light as to where I am coming from. 

    Hamdan is just a driver – he’s a schlub like some Wehrmacht guarding the Pegasus bridge at the time of the Normandy invasion.  He’s not on the level of some member of the Al-Qaeda equivalent of the German general staff or Supreme Allied Commander.  He is not the equivalent of an SS.  All he says could be a ruse, but the evidence does not get us there – the reliable evidence I must emphasize.

    KSM is more the type of person for the military commission.  But, this process with the rulings in Hamdan is just a warm-up to make sure, as applied, the rules bend low enough to get KSM.  That’s the whole game as it appears to me.  Would have been better for the law and all if this had been done in a court or courts-martial.  Would have been in line with the spirit of Nuremberg rather than the spirit of show trials.

    It would have judicial forms and judicial norms.  Check out Chambers v/ Florida (1940) that Judge James Robertson wrote about on July 18, 2008 in Hamdan.  We are coming out of that part of our history – not a pleasant one – with this kind of bullshit process.  I await to see whether the Supreme Court will bend over and acquiesce too or whether they have enough judicial toughness to insist on the rule of law and not acquiesce – as they did in Chambers.

    Yeah and I know that Chambers is American citizens while Hamdan is a foreign enemy combatant.  The foreigner/nonforeigner distinction is a big one in the US (and other countries too).  But the nature of the human rights movement is to make sure there are no humans cast into other space as states have this way of doing that to people that threaten them.  States get threatened a great deal as you know by people who think what they are doing is wrong.  Some of those people are good, and some of them are evil.  But all of them are humans.


  23. Col Davis,

    Thank you for speaking truth.  It mattered.

Trackbacks and Pingbacks

  1. […] 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 […]

  2. […] 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 […]

  3. […] 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 […]

  4. […] 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 […]