D.C. Circuit: Material Support for Terrorism Not a War Crime (Prior to 2001)

by Kevin Jon Heller

Apologies for interrupting the book discussion, but I wanted to flag the D.C. Circuit’s blockbuster opinion in Hamdan v. United States, which was issued today.  The D.C. Circuit has reversed the Court of Military Commission Review and held that material support for terrorism was not a war crime when Hamdan committed the acts for which he was convicted.  Here are the relevant paragraphs summarizing the opinion:

Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35- 36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

I will have more to say once I’ve had time to digest the opinion — particularly concerning the D.C. Circuit’s unequivocal rejection (p. 27) of the idea that military commissions have jurisdiction over acts that violate the so-called “U.S. common law of war.”  But this is very good news!


9 Responses

  1. Response…
    what is seen here is, of course, appropriate.  On wonders why the prosecutors didn’t simply charge him with aiding and abetting terrorism in violation of the laws of war instead of “material support” as an independent offense.

  2. Indeed — and the DC Circuit pointed out exactly that.

  3. Very important stuff!  So much for the Seminole War if my memory serves me right.  Good riddance.

  4. This is great news, and the hopes are other appeals will follow suit (e.g. al Bahlul). 

    There is a good blog post by Steve Vladeck on the possible implications of Hamdan on other trials: http://www.lawfareblog.com/2012/10/three-observations-on-judge-kavanaughs-analysis-in-hamdan/

  5. The prosecutors didn’t charge Hamdan with aiding the enemy because under the MCA aiding the enemy has a duty of loyalty to the USA element. Hamdan obviously did not have such a duty.

    MST, under the MCA, was designed to capture the traditional war crime of aiding the enemy, absent a duty of loyalty, and so was applicable to Hamdan. 

    The appellate governement counsel never really made this argument though.  They relied instead on the odd “American common law of war” approach, with predictable results.

    Conspiracy next?

  6. The title of your post is incorrect–it should be “MST Not a War Crime Prior to 2006.”  The significance of 2006 (vice 2001) is that Congress defined MST as an offense in 2006, and at least Judge Kavanaugh believes that Congress has the power to define LOW offenses broader than the international LOW (FN 6, pp. 15-16).

  7. The first paragraph of the opinion strongly suggests that the court regards the “war against al Qaeda” as having begun in 2001. The opinion also ties the UCMJ provision that applied prior to 2006 to the international law of war. The MCA itself applies only to conduct committed in the context of an armed conflict. So is the first paragraph just dicta, or is it a message to the Nashiri milcom?

  8. Battle JAG: and he is wrong — Congress is bound by the laws of war.  It has no power to make the laws of war either.  See, e.g., the many cases and ops. of Att’y Gens. (esp. the 1865 Opinion), views of Founders & Framers, in 14 U.C. Davis Int’l L.J. –available at http://ssrn.com/abstract=1485703
    and, Jennifer, with respect to the claim that we can be “at war” with al Qaeda, please see the new edition of the ILSA J. Int’l & Comp. L. 565vol. 18, , 566-72 (2012). 

  9. Battlejag and Jennifer,

    Your points are well taken. I used the 2001 date because I was referring to Hamdan’s conduct, not to the MCA in particular.  But yes, the decision means that MST cannot be prosecuted unless it was committed post-MCA in 2006.

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