What Congress Should Take From Hamdan

The D.C. Circuit’s decision overturning Salim Hamdan’s military commission conviction on the grounds that “material support for terrorism” is not a war crime under international law is significant in a host of ways. Steve Vladeck lists a few over at Lawfare. Beyond that, it strikes me that the decision offers a handful of indicators Congress might especially note. As it stands, Congress has prohibited bringing any of the Guantanamo detainees to the United States to face criminal trial before a regular Article III court. If I were joining Congress post-Hamdan, I might want to reconsider that restriction. The D.C. Circuit’s opinion – from a manifestly conservative panel of judges – is a shot across the bow of the military commissions in more ways than just the material support holding.

Here’s one example. In order to reach the question whether material support was a war crime at the time Salim Hamdan worked for Osama bin Laden pre-2001, the court first had to interpret the Military Commissions Act of 2006. This was the law Congress passed to authorize military commissions after the Supreme Court held them lacking such authorization in Hamdan’s first set of appeals. The MCA 2006 listed material support as one of the offenses triable by military commissions. So the D.C. Circuit had to ask: did Congress intend that law to apply retroactively to conduct that, like Hamdan’s, was undertaken before the MCA’s enactment? The court held that the MCA could not be read that way – because interpreting the statute that way would raise a serious constitutional question. It is (or should be) an uncontroversial application of the Ex Post Facto Clause of the U.S. Constitution that it prohibits prosecutions for actions that were not criminal at the time they were taken. The application of the Ex Post Facto Clause is especially noteworthy here because it had been something of a question whether the U.S. Constitution (other than the Suspension Clause the Supreme Court recognized guaranteed the Guantanamo Bay detainees a constitutional right to seek a writ of habeas corpus) applied to non-citizens held at Guantanamo Bay. While stopping short of answering the question of extraterritorial application directly, the D.C. Circuit’s opinion made clear that there are several ways the Constitution can constrain the operation of military commissions there. Even without recognizing that the detainees have any additional rights under the Constitution, courts can and likely will favor interpretations of the current MCA that comply with constitutional protections. Just as they would were the trials being held here in the United States.

It is too much to suggest that prosecution for some of these defendants would be completely without difficulty even in an Article III court applying regular criminal law. Did the ordinary federal statute making a domestic crime out of material support for terrorism have extraterritorial reach in 2001? Uncertain. But it is now apparent that civilian judicial review of military commissions will be at least as searching – and as attentive to constitutional concerns – as judicial review of ordinary criminal courts. Yet another way in which military commissions are neither superior to nor much different from good old fashioned Article III courts.