Cross-posted at LieberCode.

I have written before about the Government’s new position in the Hamdan case.  As you will recall, Hamdan was convicted by a military commission for providing material support, sentenced to five and a half years, and released for time served.  He is now appealing his conviction.

The latest government brief before the D.C. Circuit represents a significant change in theory regarding the justification for military commissions.  In the past, it was widely assumed that Congressional enactment of the Military Commissions Act was based on their constitutional power to define and punish violations against the law of nations.  Now the administration is adding an additional basis: the power to punish offenses traditionally tried before military commissions pursuant the U.S. common law of war.  This power stems from the penumbra of Congress’ war-making powers in Article I.

There are a lot of implications to the new analysis, not all of which I have fully digested yet.  Under the Define and Punish Clause, Congress is assumed to be tying itself to an evolving body of law – international law – whose content is increasingly complex, sophisticated, and refined.  In contrast, the new penumbral argument ties the Congressional power to a largely static body of law – military commission law – because for the most part the United States didn’t use military commissions between the end of World War II and 9/11.  Furthermore, many of the World War II military commission cases like Quirin predate the Geneva Convention, Common Article 3, and all of the great advancements of international criminal law.  So the new theory feels a lot like getting into a time machine and emerging with the law of war as it exists in 1945 (or even during the Civil War), not as it exists today.

Aside from the exact status of this “U.S. common law of war” – a term that I am a bit skeptical about — I want to raise another issue here, and that’s the status of conspiracy as an inchoate offense under this new theory.

In the original Hamdan case, a four-justice plurality concluded that conspiracy was not a violation of the law of nations and therefore could not be prosecuted before a military commission.  Kennedy joined the plurality as to the final outcome of the case but did not join the conspiracy section of the opinion.  This left the status of conspiracy in some question, especially given the recent changes in the Supreme Court’s composition.

However, if the D.C. Circuit or the Supreme Court were to adopt the government’s new theory of military commissions, I think the crime of conspiracy would definitely withstand judicial scrutiny.  In fact, it would be a much easier argument.  Under the government’s proposed structure, the question is whether there is significant precedent under U.S. law for punishing certain crimes before a military commission during wartime.  In contrast, the problem with conspiracy according to the Hamdan four-justice plurality was that it had been largely rejected at Nuremberg and subsequent international conventions and tribunals (with the exception of conspiracy to commit genocide).  Under the new scheme, however, the international angle would be completely off the table.  Conspiracy’s status as a distinctively common law criminal concept would no longer be fatal to its application at a military commission.  In fact, conspiracy’s deep roots in the common law might even be an asset under the new analysis.

Unfortunately, the D.C. Circuit Hamdan case won’t deal with conspiracy directly, since he was acquitted of that charge and it is therefore not on appeal.  But I would think that another case down the pipeline will certainly address this question.

Last October, Col. Morris Davis resigned as chief prosecutor of the military commissions, claiming that Brig. Gen. Thomas Hartmann had interfered with the prosecutor’s office, pressured him to use classified evidence — requiring sessions to be conducted behind closed doors — and encouraged the use of evidence obtained through waterboarding.  Col. Davis filed a formal complaint at the time, but the Pentagon sided with Hartmann instead.

I think the Pentagon may want to rethink which side it’s on…

Salim Hamdan has been sentenced to 66 months in prison, far short of the 30 years-to-life sentence the prosecution requested.  Good news for Hamdan? Probably not, as Colonel Morris Davis — the third chief prosecutor of the military commissions, who resigned because of political interference by the Pentagon — pointed out in the comments to my ex post facto post:

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.

In the time since Col. Morris posted his comment, the Bush administration removed any doubt that Hamdan isn’t going anywhere: earlier today a Pentagon spokesman stated that Hamdan will “still be retained as an enemy combatant,” his only hope for release “the annual review board process to determine whether he’s eligible for release or transfer.”

The sole virtue of being the last among bloggers to weigh in on yesterday’s Hamdan verdict is having a chance to read what everyone else is saying. The New York Times, the ACLU, Human Rights First and others are pretty scathing in their criticism: don’t be fooled by the patina of fairness evinced by the split verdict, this system is irretrievably broken.

The White House’s rhetoric was comparatively reserved, saying in a statement the Times quotes: “The military commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests. We look forward to other cases moving forward to trial.”

The campaigns largely talked past each other on how trials for detainees like Hamdan should be handled. After proclaiming the verdict as evidence of the system’s success after Congress fixed it by passing the MCA in 2006, McCain’s statement says:

This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.

Of course, that’s not quite Obama’s position. That campaign issued this statement:

I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial – the first military commission trial with a guilty verdict since 9/11 – took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Osama bin Laden and the terrorists who murdered nearly 3000 Americans.

And everyone recognizes there are appeals to come, as well there should be. But while there are obviously some important legal questions to be resolved here (on that I hope later better than never), I confess I’m not sanguine about the likelihood of Hamdan prevailing, as much for reasons of atmospherics as law. In many respects, this trial gave the impression of normalcy. The ‘judge’ evaluated a host of pretrial motions, ruling in Hamdan’s favor on some, in the government’s favor on others. The ‘jury’ deliberated at length and thoughtfully, acquitting Hamdan of the broadest (and least plausible) allegations that would have led him to taking direct blame for terrorist attacks of which he was (at most) distantly aware. There are enormous questions of the legitimacy of some of the factual evidence the commission considered, but at base, my understanding is that the central conduct for which he was convicted – driving Osama bin Laden – is not actually much (or at all) in dispute.

Will a federal court look past these facial features to probe the real legal questions here? Only a delinquent court would fail to do so. But judges are not immune to atmospherics like this. And many have a habit to decide only what needs to be decided in the individual case. It’s the perception challenge that will be among Hamdan’s greatest on appeal. I’d welcome being proven wrong.

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 tide readers over until Deb offers her thoughts, readers interested in some of the strengths and the weaknesses of the Hamdan verdict would do well to read Dave Glazier’s post at National Security Advisors and Marty Lederman’s post at Balkinization.

Well, the Hamdan verdict is in: guilty on five counts of material support to a terrorist organization, but significantly for cases to come – not guilty on the far broader charge of conspiracy. The Times’ story is here. Sentencing to follow this afternoon.

This is hardly the end of the story. There will certainly be appeals. But it is no doubt a significant milestone: the first trial conviction of any of the detainees at Guantanamo Bay. I’ll be back later this afternoon with some more detailed thoughts.

UPDATE: The Hamdan charge sheet is available here. Hamdan was acquitted of both specifications of conspiracy, and on Specifications 1, 3, 4 of the material support charges.

I was hoping that the discussion last week would address not only who could be tried by a military commission, but also for what crimes someone could be tried.  That issue flared up again yesterday in the Hamdan trial, when the presiding military judged refused to instruct the jury that any attempt by an “unlawful enemy combatant” — a status that, as innumerable scholars have pointed out, does not exist under international humanitarian law — to kill a soldier is a war crime…