An Annoying Mistake in an Otherwise Good 11th Circuit Opinion

by Julian Ku

The U.S. Court of Appeals for the Eleventh Circuit upheld this week the conviction of “Chuckie Taylor” for violating the U.S. Anti-Torture Act, which implements U.S. obligations under the Convention Against Torture. Taylor is the son of former Liberian President Charles Taylor, currently on trial himself in the Sierra Leone Special Court. The opinion is a good and important one since this is the very first discussion of the Anti-Torture Act in a U.S. appellate court.  However, there is one glaring and annoying  (if largely inconsequential error). In rejecting one of Taylor’s appeals, the Court writes:

The only case Emmanuel cites in support of his contrary position is Hamdan v. Rumsfeld, 548 U.S. 557 (2006). The Supreme Court did conclude in Hamdan that a conspiracy to violate the customary international law of war was not an offense punishable under that body of law in a military commission. Id. at 601-12.

Why is this annoying? Because that part of the Hamdan opinion is not a “holding” but merely the opinion of four members of the Court.  (See pp. 601-12 of Part V here).  Justice Kennedy pointedly did NOT join the Court on this point (see p. 638).  So this is a mistake, no doubt by an overworked law clerk (hey, I’ve been there!).  Still, worth a correction, if any law clerks out there are reading! (And don’t forget to cite us when you do!).

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