Hamdan Gets A Full Panel Review

/in /by

This is a rather interesting pre-holiday document dump:

The Pentagon’s war crimes appeals court announced without explanation Friday that the full U.S. Court of Military Commission Review, not a smaller panel, would review the conviction of Osama bin Laden’s driver, now free and living in Yemen.

[snip]

A three-judge panel heard both sides of the case in January, in Washington D.C. All the briefs had already been filed, and attorneys were anticipating a decision.

Now, five judges on the appeals court — Navy Capts. Daniel E. O’Toole and Eric E. Geiser, Air Force Cols. Cheryl H. Thompson and Barbara Brand and Army Col. David Conn — announced the “en banc” or full court review in a single page order issued to attorneys hours before the start of the long Labor Day weekend.

Rosenberg goes on to note that Geiser retired today–I’m asking for clarification whether that means he’ll be part of this full panel or not. [Update from Rosenberg: He’s retired and will not be deciding. He did decide though to vote for en banc review.]

At issue is whether the charges Salim Hamdan was ultimately convicted of–material support and conspiracy–were legitimate charges for him since they were not war crimes in 2001, when Hamdan was captured. In fact, Assistant Attorney General David Kris has said he doesn’t think material support charges can be used in military commissions at all (though he was okay with charging conspiracy in military commissions).

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy. However, we believe conspiracy can, in many cases, be properly charged consistent with the law of war in military commissions, and that cases that yield material support charges could often yield such conspiracy charges. Further, material support charges could be pursued in Federal court where feasible. [my emphasis]

Gosh, these military commissions sure aren’t holding up to scrutiny, are they?

  1. bobschacht says:

    Here’s one hope: that the further we get away from some of these actions, the more absurd they will look, so that eventually the law will be set right, even if it’s too late for the individuals involved. At least in this case, Hamdan is now free.

    In this case, I’m hoping that the en banc review will be sufficiently embarrassed by the original conviction, and by the process involved, that it will throw the results out.

    Bob in AZ

    • BoxTurtle says:

      He called earlier today and offered me the soul in return for a Dr. Pepper and a couple of Oreos. I turned him down.

      Boxturtle (Oh, you meant how NEAL felt)

      • phred says:

        LOL — busted by the grammar police, dang it. And after I ribbed EW about “raising Dr. Kelley” the other day, too. Serves me right ; ) Still I’m surprised you didn’t think longer about the offer of a Dr. Pepper and a couple of Oreos, that’s a pretty tempting offer in my book ; )

        And bmaz, I should have used a snark tag. I have nothing but contempt for Katyal. It burns me up that I joined in with a standing ovation at an ACLU event where he was given an award. I thought he was a rule of law kind of guy based on his work on Hamdan. Clearly, I was wrong.

    • bmaz says:

      I think you are overrating Katyal’s concern simply because of his involvement in a defense case. He has always personally been much more of a hardliner on war on terror issues, almost approaching neocon type thought. If you are depending on Katyal for heroism on this front, you are in a world of hurt.

  3. Mary says:

    I can see ways you could end up taking this almost any way.

    I don’t see the panel of its own, as a military,commissioned panel, doing much to even begin to try to strike down the Congressional scheme that allows for the material support prosecution. I guess it could be what is in the works – but not only do I not see it – in some ways it would be pretty disturbing to have a military commission say that it is not going to abide by the rules and regs that Congress, under its constitutional authority, has imposed on it. Might be nice for the outcome, but I think it would worry the snot out of me for its long haul outcrops.

    OTOH, there is a reason for the full panel getting together. IMO, it’s bc they know what they want to do and they want it to have as much weight as possible. If they wanted to tangle with Congress, a full panel would be a better slot, but equally, if they want to juice up their assertions of military authority on a case that might go before the US Sup Ct, they juice that up better with a full panel as well – giving Roberts, Thomas etc. the ability to groan that if such a thing weren’t a war crime, then a whole military panel wouldn’t have found that it was.

    Another option could be for the panel to do something like say that the conviction was correct at the time but to give out some dicta that with the changes in the civilian law with respect to material support, there is no longer a need to use the military commissions that dip their toe into the otherwise untriable, outside the law, charges when those can now, as clarified by a S Ct ruling after Hamdan’s case, be tried in civilian courts – kind of tossing it back to Congress and saying they think the recent SCT ruling modifies everything including how the MCA should interpreted.

    There are just lots of different ways – good and bad for MCAs – this could conceivably go.

    • emptywheel says:

      Aren’t they reviewing a more limited question? Whether Hamdan alone could be tried for MS, given that that wasn’t a war crime when he was captured and when he committed these crimes? That’s basically what the Gitmo Task Force has already said, that there are people whom they can’t charge bc the MS was not a crime when they committed that MS.

      • Mary says:

        It’s much broader than that IMO, bc what you are really looking at is the more encompassing subject matter jurisdiction issue.

        So they have the issue where the commission below did rule for the detainee (i.e., whether the Constitution’s ex post facto prohibitions apply, which was decided in favor of the detainee [and I’m still thinking that someone needs to make the bill of attainder argument as well, but haven’t seen it and Hamdan is maybe not the best exemplar for it])

        Then, if raisable, you go to the issues of what are the laws of war and how does the Executive interpretation when Congress is silent (something not really handled much by the lower court) address the issue and what happen when Congress acts/acted as it did with the MCA with respect to a clarification of existing violations of the laws of war vs. creation of a new violation and with respect to both – whether they are empowered by Congress under its Constitutional grant [and this is where I would pull in the contra – whether they are a prohibited on not just a timeliness aspect as ex post facto, but on a jurisdictional aspect as being an overbroad bill of attainder that allows Executive branch actions with respect to civlian populations free from the reach of courts)

        Part of gov argument is that the words “material support of terrorism” are not as important as the content of the action and that the contenf of the actions has been encapsulated by previous treaties and statutes. OTOH, some of that argument shoots them in the foot IMO bc as the underlying opinion itself states, some of those treaties require “criminalization” (civlian law criminalization) and some of Congress’ prior scheme was, indeed, criminalization under civilian law.

        Still – as much as it might have some benefits in the short run, I’d be kind of disturbed by a Commisison ruling that overturned Congressional action. You have a basically lawless Exec branch tribal proceeding and whether you like the outcome or not, to say they have the power to declare Congressional acts unconstitional is disturbing – we have a branch of gov for that, it’s the Judiciary branch. To cede to the Exec branch the power to overturn, militarily, Congressional acts is problematic imo. fwiw

        I do hope the attainder arguments get their fair take, as well, though. And since the Dist Cts have been struggling with the lack of decent Congressional definition so far with respect to their habeas cases, it will be important to see what the commissions are going to use here for their smj basis. But the recent Sup Ct case that cut such a huge swath re: material support coverage – and which opened up huge selective prosecution doors along with it – is a Sup Ct precedent nonetheless and it is probably appropriate for an en banc review of what that Sup Ct case with its “doors thrown open” interpretations means vis a vis Congressional clarification in the MCA of what Congress felt was included under the laws of war. You could go either way on it – that if the Sup Ct is saying this is a civlian law matter with its broad rulings, that it mitigates against the commissions and their smj, or that if the Sup Ct is so broad on what it thinks is mat support of terrorism from a civilian law standpoint, it is a valid clarifiation that Congress is saying such things are also war crimes and were always meant to be.

        Not that this answers your point as much as it should, but the whole thing takes a lot more to spell out and address, imo, than can be done here easily.

        All without getting into the huge farce and hypocrisy of gov’s arguments on how Congress has a duty under its treaties to criminalize these things while ignoring the duties to criminalize what was done to Errachidi on the one hand and under one set of treaties and statutes, and even to KSM on the other hand under other aspects of the same and additional treaties and statutes.

        Selective prosecution gone mad.

        • bobschacht says:

          Thanks, Mary.

          Selective prosecution gone mad.

          Indeed, that’s the whole story, isn’t it? Justice is no longer blind, and the scales of justice are no longer balanced. Us little people don’t count as much as the big shots. The bigger you are, the more fraud you can get away with. Or the price of fraud is a small percentage of the profit achieved by the fraud.

          It took Roosevelt about 6 years to get to the point that he welcomed the hatred of the Banksters– and that ultimately helped him get elected to a third term. There’s a lesson here, for Obama, if he wants to learn it. I hope it won’t take 6 years for him to learn it.

          Bob in AZ

        • powwow says:

          Agreed about the importance of the Bill of Attainder argument, Mary. It has at least been raised in Al Bahlul’s CMCR appeal (I also recall seeing it in some or all of the writ of mandamus appeals to the Supreme Court I’ve read, filed on behalf of Guantanamo detainees).

          [Speaking of Al Bahlul, I believe one civilian – retired Rhode Island Supreme Court Chief Justice Frank Williams – heard oral argument in his case on January 26th (along with Colonels David Conn and Cheryl Thompson), but Carol Rosenberg’s article doesn’t mention Williams as a member of the court today. So that panel is apparently down to two original members as well. It would be odd, wouldn’t it, if Hamdan’s case got full court review on the first pass, but Al Bahlul’s didn’t? (Hamdan is now free, Al Bahlul remains in Guantanamo under a life sentence.)]

          Here’s the pertinent part of the Table of Contents of Ali Al Bahlul’s September 1, 2009 CMCR merits brief:

          IV. THE MILITARY COMMISSIONS ACT IS AN UNCONSTITUTIONAL BILL OF ATTAINDER…30

          a. The MCA applies to a discrete group of individuals defined by their past conduct…30
          b. The MCA imposes punishment by depriving AUECs of pre-existing rights. …31

          i) The deprivation of pre-existing rights is the historical definition of punishment…32
          ii) AUEC status furthers no nonpunitive legislative purpose…33
          iii) Congress created AUEC status with a punitive intention…34

          c. Congress deprived Mr. al Bahlul of fundamental rights without judicial trial…35

          We’ll see whether the military judges on the Court of Military Commission Review do a better job of assessing the Constitutional prohibition on Bills of Attainder than did three politicized Second Circuit appellate judges recently in overturning District Judge Gershon’s careful, comprehensive opinion concluding that (repeatedly) forbidding one named (uncharged, unprosecuted, unconvicted) entity from even being considered for federal grants or funds in future, for no legitimately-grounded good government purpose (and for no specified reason at all in the wording of the legislation), is clearly a punitive Bill of Attainder.

          From Al Bahlul’s appellate brief:

          Hence, a law is a bill of attainder if there is nothing an individual can do prospectively to avoid the law’s consequences. Selective Service, 468 U.S. at 848.

          The group the MCA singles out is the class of detainees held at GTMO on suspicion of having opposed the United States in the War on Terror. The MCA identifies this group specifically as “alien unlawful enemy combatants” (“AUEC”) 10 U.S.C. § 948a (1)(A), and the revisions to the MCA currently before Congress identify this group in largely identical terms as “unprivileged belligerents.” See S.1391 11th Cong. § 948(a)(7) (2009). […] AUEC status is therefore nothing other than a reverse-engineered definition, designed to impose the law’s burdens upon GTMO detainees uniquely.

          […]

          Systematically, therefore, the MCA sought to reverse holdings of the Supreme Court as to the rights enjoyed by a known class of litigants. Legislating those rights away after the fact is precisely the breach of the separation of powers – the substitution of the legislature’s judgment for that of the courts in the disposition of individual cases – that the Bill of Attainder Clause was designed to prevent. See, e.g., Carmell v. Texas, 529 U.S. 513, 526-30 (2000) (describing at length the attainder of Sir John Fenwick, who prevailed in the courts only to be attainted by the Parliament in 1697).

          […]

          In Lovett, the Supreme Court held that the Bill of Attainder Clause’s basic purpose was to ensure that rights deprivations are only meted out by “duly constituted courts.” In explaining what a “duly constituted court” was, the Court listed a number of familiar criteria:

          An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and even after conviction no cruel and unusual punishment can be inflicted upon him.

          Lovett, 328 U.S. at 317-318.

          Again and again, the Bill of Attainder Clause has served as the constitutional bulwark against the very special trials and star chambers that the Founders had endured under English rule. Cf. Crawford v. Washington, 541 U.S. 36, 43-47 (2004) (discussing the right to confrontation in England being denied in the Star Chamber and in attainder proceedings). Like the requirement of a “regularly constituted court” in the Geneva Conventions, the Bill of Attainder Clause ensures that rights deprivations are imposed by pre-existing procedures, devised and implemented before times of “popular clamor.” Brown, 381 U.S. at 445;

          […]

          This makes the MCA a bill of attainder in the historical and the modern sense.

  4. newz4all says:

    Blackwater Worldwide created a web of more than 30 shell companies or subsidiaries in part to obtain millions of dollars in American government contracts after the security company came under intense criticism for reckless conduct in Iraq, according to Congressional investigators and former Blackwater officials.

    While it is not clear how many of those businesses won contracts, at least three had deals with the United States military or the Central Intelligence Agency, according to former government and company officials. Since 2001, the intelligence agency has awarded up to $600 million in classified contracts to Blackwater and its affiliates, according to a United States government official.

    The Senate Armed Services Committee this week released a chart that identified 31 affiliates of Blackwater, now known as Xe Services. The network was disclosed as part of a committee’s investigation into government contracting. The investigation revealed the lengths to which Blackwater went to continue winning contracts after Blackwater guards killed 17 Iraqi civilians in Baghdad in September 2007. That episode and other reports of abuses led to criminal and Congressional investigations, and cost the company its lucrative security contract with the State Department in Iraq.

    The network of companies — which include several businesses located in offshore tax havens — allowed Blackwater to obscure its involvement in government work from contracting officials or the public, and to assure a low profile for any of its classified activities, said former Blackwater officials, who, like the government officials, spoke only on condition of anonymity.

    http://www.nytimes.com/2010/09/04/world/middleeast/04blackwater.html?_r=1&hp

    this will never end in our lifetimes. these scum do too much of the dirty filthy covert crap that the usa government wants plausible denialability for.

    and the dirty filthy mercenary scum ( psychopaths all ) are ready able and very willing to commit war crimes from now until the cows spit in alan simpson’s corn flakes.

    • bobschacht says:

      …the dirty filthy mercenary scum ( psychopaths all ) are ready able and very willing to commit war crimes from now until the cows spit in alan simpson’s corn flakes.

      Cows can spit???
      I think Simpson’s corn flakes are safe.

      Bob in AZ

  5. powwow says:

    Interesting indeed. Though unfortunately apparently delaying further an already-overdue decision (given the basically empty docket of this “Court”). The appeal of Al-Bahlul’s conviction was heard in oral argument the same January day as Hamdan’s – does this mean Al-Bahlul’s appeal is finally ready for a ruling, by just a three-member panel?

    Great pre-holiday catch, Carol Rosenberg and Emptywheel.

    Speaking of catching, I hope everyone caught David Glazier’s superb new analysis and critique of the five Commission charges – including conspiracy and material support for terrorism – lodged against Omar Khadr, which was published Wednesday:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669946

    Daphne Eviatar’s Thursday Seminal diary recapped Glazier’s arguments well, but I recommend downloading and reading his full paper to get a comprehensive presentation of the details.

    A sampling [though focused on Khadr’s charges, much of Glazier’s analysis applies equally to the four convictions of detainees so far returned by Military Commission]:

    The Supreme Court explicitly ruled in precedential World War II era cases that military commission jurisdiction is predicated on charges that state an actual violation of the law of war.

    […]

    Khadr is being tried on five separate charges, although it will be seen that the underlying logic of several of these is functionally the same. The charges, in the order they appear on his charge sheet, are:

    (1) Murder in Violation of the Law of War
    (2) Attempted Murder in Violation of the Law of War
    (3) Conspiracy
    (4) Providing Material Support for Terrorism
    (5) Spying

    […]

    There is no reason for the LOAC [Law of Armed Conflict] to criminalize the use of force by unprivileged belligerents, however, because these individuals lack immunity from ordinary civil law and can be held accountable for any acts of violence they commit under domestic law, and LOAC experts are in general agreement that [the LOAC] does not [criminalize such use of force].51

    […]

    The U.S. approach has the practical effect of converting this armed conflict into a human-hunting season; the government asserts U.S. combatants had the right to shoot Khadr on sight (he was shot twice in the back based on his being a “hostile” rather than because he posed any particular threat at the time)79 yet criminally prosecute him for fighting back. This approach repudiates the functional equivalence between the conflict parties which is a core element of the LOAC and attempts to transform this law from one evenhandedly regulating the conduct of both parties into a unilateral shield for one side.

    […]

    Lacking combatant immunity [if he does], [Khadr] can be prosecuted in a regular U.S. district court for violating any applicable federal criminal statute which has the extraterritorial application necessary to reach conduct in Afghanistan. Alternatively, the United States could return him to Afghanistan to face prosecution under the applicable domestic law of that nation.

    […]

    First, international law necessarily must reflect the legal consensus of the community of nations, not just those from one heritage, and the substantive offense of conspiracy is far from universally recognized.99 Indeed, the idea that conspiracy to commit a war crime itself constituted a war crime was explicitly considered, and rejected, by U.S. law of war tribunals following World War II.100

    […]

    The fourth charge against Khadr, “providing material support to terrorism” shares similar issues with conspiracy—it both lacks any recognized grounding in international law109 and the “unlawful” conduct specified in Khadr‘s charge sheet fails to describe any activity which violates the law of war.

    […]

    The final charge against Omar Khadr, spying, is uniquely flawed. First, the MCA‘s definition of the offense errs in its treatment of the relevant international law. But even more fundamental than this linguistic difficulty is the fact that the government‘s charge sheet provides prima facie documentation that Khadr cannot lawfully be prosecuted for spying upon the specific facts which the government alleges, suggesting that the prosecution is either ignorant, or contemptuous, of the law of war.

    […]

    One element that makes the offense of spying exceptional is that it is defined by the law of war, which authorizes punishment by victim nations as a means of self-defense, but it is not a war crime. Although subject to trial and potential execution by the victimized force, the spy does not personally violate international law, cannot be tried by any other party unlike an actual war criminal subject to potential universal jurisdiction, and a commander commits no legal violation by employing him.121

    […]

    Yet despite the fact that he faces five separate charges, the specifications lodged against Canadian defendant Omar Khadr either fail to state a recognized violation of the law of war, or where the offense is facially valid, the specific conduct charged does not meet the law‘s definition of the crime. The perverse irony is that the only “war crime” present in Khadr‘s Guantánamo courtroom appears to be denial of a fair trial, and the perpetrator is the government, not the defendant.

    […]

    It is long past time for the government to conform its “war on terror” prosecutions to the rule of law.

    – David Glazier, 8/31/2010

    This is one instance where military judges bucking the contemptuous disregard for recognized, universal norms of the Law of Nations (and its subsidiary law of war) by our modern Congress, would be heartily welcomed by me. Such a development would, I think, stand as a sterling example of the ability of some military legal actors to do their Constitutional duty despite immense pressure to buckle under and look the other way – pressure that I’m sure these Court of Military Commission Review judges (who probably feel in over their heads) are sensing from their Chain of Command culture and, however indirectly, from external political influences and actors.

    The appellate briefs and oral argument in the Hamdan CMCR appeal are available here.

    • bmaz says:

      Interestingly I talked to Glazier today and that is not even the full and final version of his work, although clearly it is a substantial extract; there is more he is adding and hopes to be done sometime mid to late next week. Will notify when I get the final version. It is very good stuff

      • powwow says:

        It is very good stuff.

        It is indeed.

        I assumed that Glazier’s full paper was further in the offing than next week or the week after. Thanks for the news, and for any future updates about Glazier’s important work exposing how American military commissions still fall well short of the standards of the international law of armed conflict that they purport to enforce.

        • phred says:

          powwow and bmaz, thanks for the info on Glazier’s analysis. From the link, it appears he is a law professor. I appreciate his academic effort, but how does it get from a paper to an oral argument (or legal brief) before a judge who can act on it?

        • powwow says:

          I appreciate [Glazier’s] academic effort, but how does it get from a paper to an oral argument (or legal brief) before a judge who can act on it?

          I can think of at least two possible ways that Glazier’s material could reach judges in the immediate future:

          1. As I noted in this and subsequent comments, there may soon be a petition to the Supreme Court filed by Omar Khadr’s attorney, Lt. Col. Jon Jackson, requesting review of the D.C. Circuit’s belated pro forma denial in August of Khadr’s March, 2010 “Writ of Mandamus and Prohibition,” along with a request for a stay (if necessary) of the October 18th resumption of Khadr’s Commission trial. Lt. Col. Jackson on behalf of Khadr is challenging, among other things, the Commission’s legal basis for defining and prosecuting material support for terrorism, conspiracy, spying, and the (alleged) status of “unprivileged” combatant (or belligerent) as war crimes, and he could incorporate related arguments and evidence, that Glazier has compiled, in any pending petition to the Supreme Court.

          2. As Carol Rosenberg’s article points out, Salim Hamdan’s lawyers are considering asking the Court of Military Commission Review to allow additional briefing, given the sudden, unexplained decision to have the en banc court make the initial ruling on Hamdan’s appeal. Hamdan’s appeal is also challenging, in part, the Commission’s legal basis for defining and prosecuting material support for terrorism as a war crime, and if there are arguments and evidence that Glazier has marshalled, or will marshall, that hadn’t yet been included in the Hamdan appellate briefing or oral argument, I’m sure Hamdan’s attorneys would attempt to include any such pertinent material in a second oral argument, if ordered, or in additional briefing they may be allowed to submit to the court.

          P.S. As indicated by Emptywheel’s update in the post, though Carol has apparently removed the tweet since, I too noticed that Carol responded to emptywheel’s request for clarification by tweeting that Navy Captain Eric E. Geiser, having just retired, will not be a part of the four-member en banc CMCR Court to make the decision on Hamdan’s appeal (though Geiser was one of three judges who heard the January oral argument – where, by the way, one male judge did most of the questioning). Presumably Geiser’s retirement, before the three-member panel had its decision ready, was a major reason for the decision to have the two remaining non-recused CMCR judges help decide Hamdan’s case. The fifth remaining member of this dwindling court (Navy Captain Eric Prince) has recused himself from Hamdan’s case.

        • phred says:

          Thanks powwow — much appreciated as always.

          By the way, now that Katyal has joined the Dark Side, I assume he can no longer represent Hamdan. So who are his lawyers these days? Is Swift still working on the case? Who took Katyal’s place?

        • phred says:

          Oops! Never mind. You mentioned Lt. Col. Jackson above and Carol Rosenberg mentioned someone named McMillan. So I assume Swift is gone now, too? Is it normal to have rotating lawyers in such a long drawn out case as this?

        • powwow says:

          Hamdan’s current lawyers, according to his 10/15/2009 CMCR merits brief: Harry H. Schneider, Jr., Joseph M. McMillan (quoted in Carol’s article), and Charles C. Sipos of Perkins Coie LLP, Seattle, on the civilian pro bono side, and as the designated military appellate counsel from the DOD’s Office of Military Commissions, Office of Chief Defense Counsel, Adam Thurschwell and Michael Thieme. McMillan, as I recall, has been representing Hamdan since at least 2007. Swift has retired from the military, I believe (recall that his promotion was speciously denied), so he wouldn’t have been able to continue as the designated military defense counsel for Hamdan. I suppose Swift may still be helping on Hamdan’s defense in other ways, though. [Lt. Col. Jackson is the designated military defense counsel for Omar Khadr.]

          As we’re seeing with this CMCR development, the retirement rate of high-ranking military officers seems to contribute to the tendency you note of an ongoing “rotation” of lawyers and judges in these cases – as no doubt, over the long periods involved, does the strain on budgets and time of pro bono representation by civilian law firms. I don’t know if that tendency toward rotation can be considered “normal” in a general way, but perhaps it’s some sort of “new normal” courtesy of the Military Commissions Act.

          [You’re most welcome, Bob in AZ. Thanks for reading.]

        • phred says:

          Thanks again. I would think such churning contributes to the detainees’ lack of trust in their legal counsel.

        • powwow says:

          Perhaps even when the detainee is the cause of the churning – as Omar Khadr is, having repeatedly fired both his civilian and military lawyers in an attempt to exert some small agency of his own over his fate.

          Steve Vladeck has written a post about the CMCR’s en banc announcement, where he includes a link to his earlier paper addressing the jurisdictional problems of the military commissions, and notes how the failure of the courts to resolve these crucial questions continues to unhelpfully impact the debate about where to try the small minority of Guantanamo detainees charged with violating the law of armed conflict.

          This from Vladeck’s post perhaps adds to Mary’s answer @ 17 to Emptywheel’s question @ 11:

          The most optimistic explanation [for this en banc decision] might be that the panel has come to appreciate the structural significance of the issues raised in Hamdan’s appeal, especially his challenges to (1) Congress’s power to make certain offenses triable by a military commission; and (2) Congress’s power to apply those definitions retroactively–i.e., to conduct that pre-dated the Military Commissions Act of 2006. And whatever the answers to these questions are, there can be little doubt that their significance transcends Hamdan’s case–indeed, they pervade virtually every military commission proceeding currently underway. By that logic, allowing these issues to go to the en banc CMCR as an initial matter might make good sense, given that the answers will matter in virtually every case this court hears. (That still doesn’t explain the delay, of course.)

          The significance of the issues raised, and the rarity of the opportunity to thoughtfully and thoroughly adjudicate them at an appellate level, should have been recognized from the beginning of the CMCR’s involvement in the Hamdan and Al Bahlul cases, it seems to me, and I didn’t and don’t see the point in having different three-judge panels, rather than the full CMCR (given its minimal caseload), assigned at the outset to hear and decide these first two Commission-conviction appeals.

        • powwow says:

          I see now that Steve Vladeck’s linked paper was actually published very recently too – on August 19th, 2010 – and it sounds like another very helpful exploration of the problems with the Guantanamo Military Commissions.

          From Vladeck’s Abstract:

          This article attempts to provide a thorough introduction to – and analysis of – the constitutional limits on the jurisdiction of military commissions. By “jurisdiction,” I mean two distinct types of authority: Jurisdiction over the offense, and jurisdiction over the offender. The former goes to whether the military court has the authority to try the charged offense; the latter goes to whether the military court has the authority to try the charged defendant. And whereas there are some precedents on the scope of these two species of jurisdiction in the context of military commissions, the law is far better settled in the closely analogous context of courts-martial, where similar issues routinely arise.

          Drawing on the court-martial decisions for support, this article concludes that the Constitution does meaningfully constrain the ability of Congress to subject particular offenders and offenses to trial by military commission. In particular, under the Supreme Court’s own jurisprudence, the Constitution only authorizes the exercise of military jurisdiction over servicemembers or “offenses committed by enemy belligerents against the law of war.” And although Congress is entitled to some latitude in giving content to the laws of war, there is simply no question that the constitutionality of the Military Commissions Acts of 2006 and 2009 is not settled by Congress’s self-serving ipse dixit in each statute that all of the offenses are war crimes. Even if Article I tolerates such a naked arrogation of power, the jury-trial protections of Article III and the Fifth and Sixth Amendments do not – and never have.

    • diane1976 says:

      I saw Mr. Glazier’s report too, and Daphne’s article. I think a number of military experts and legal and human rights organizations take the same view, but I’ve never seen it so well and clearly supported as in his article. It’s really well written too.

      I sent him an email to express my appreciation, also nattered at him about the fact that I think Khadr should have been granted POW status, last criteria under the Geneva III on POW’s. I know it’s not an exact fit perhaps but I think it’s more reflective of reality than prosecuting him under any law, international law of war or domestic.

      I find it’s just not appropriate for a country to invade another country, regardless of how just the cause or how illegitimate its government may be, and then prosecute a fighter, especially a fifteen year old, who was an inhabitant of that place for quite some time, solely for fighting back. I find this offensive.

      As I understand it the international laws of war neither require nor prevent prosecution of fighters who don’t meet the criteria for POW status, even if he didn’t. Seems to leave it up to common sense. Common sense, plus the Optional Protocol to the CRC on children in armed conflict, suggested otherwise in this case. If a person were to take up arms against the Afghan government today it would make sense to prosecute him in a domestic Afghan court, but not at that time under those circumstances in mid-summer 2002.

      • powwow says:

        As I understand it the international laws of war neither require nor prevent prosecution of fighters who don’t meet the criteria for POW status, even if he didn’t. Seems to leave it up to common sense. Common sense, plus the Optional Protocol to the CRC on children in armed conflict, suggested otherwise in this case. If a person were to take up arms against the Afghan government today it would make sense to prosecute him in a domestic Afghan court, but not at that time under those circumstances in mid-summer 2002.

        I assume you meant there: “…the laws of war neither require nor prevent prosecution under domestic law of fighters” ineligible for POW status, for actions they’ve taken that violate domestic law (but not the law of war). If so, in Khadr’s case (assuming he was determined not to be a POW), you’d be referring to the domestic laws of Afghanistan at the time, or to any U.S. domestic law which then reached conduct by Canadians in Afghanistan.

        Not only would common sense argue as you suggest, but so would the fact that the law of war does not require that a captor nation treat any of its captives as other than POWs. All Guantanamo inmates could be, and could have been, treated as Prisoners of War by the U.S. military, even if genuine Article 5 hearings would have legitimately lowered their status (and thus their treatment and rights, though not, in my opinion, the right to be tried for alleged war crimes by a UCMJ-governed court martial) to something less than a formal POW designation provides.

        The law of war does not allow a captor to prosecute its captives merely for fighting against it – as Glazier’s paper spells out – whether those captives qualify as POWs or as non-POW belligerents or civilians. Glazier has an important footnote highlighting that Congress in the Military Commissions Act mistakenly equated POW status with being a belligerent:

        [Footnote 48] There is a substantial flaw in the MCA‘s definition of privileged belligerent, found at 10 U.S.C. § 948a.(6). This section is significantly overbroad, mistaking the Third Geneva Convention Article 4‘s list of who can qualify as a prisoner of war, which includes such obvious non-belligerents as “civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces . . .” for a list of who qualifies as a privileged belligerent. There does not seem to be any issue with the fact that the individual Khadr is accused of killing, an active duty U.S. Army sergeant, was a legitimate belligerent, however. Although Speer has been identified as a member of Delta Force, an organization known to sometimes operate without military uniforms, there is nothing in the public record indicating that to have been issue on the day he was mortally wounded.

        http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669946

        As Glazier explains, “unprivileged” belligerents – that is, those fighters who are not deemed immune from prosecution under domestic law for purposes of fighting the war, and who thus don’t qualify for POW status – only violate the law of war by taking an action that itself violates the law of war (say, targeting civilians, for which POWs may likewise be prosecuted), rather than by their unprivileged belligerency standing alone. Because domestic law still has jurisdiction over them (unlike over privileged belligerents), unprivileged belligerents may be punished for violating domestic law (by murdering foreign soldiers, for example), whether or not that action violates the law of war. The law of war is aimed at reducing the violence unleashed by war to a minimum necessary use of force, and at protecting war-time captives. It is not concerned with regulating the domestic affairs of a nation. And where it does not provide immunity from domestic law, it has no need to interfere with whether or not domestic law is brought to bear on citizens violating that law to engage in armed conflict as irregulars or guerrillas who, while not violating the law of war by their status or conduct (for which they may be legitimately targeted by opposing fighters), may not qualify for POW status if captured.

        • bobschacht says:

          powwow,
          Thanks for your patient exegesis of these matters. I hope that the right people are reading these threads, and that some day the DOJ will awaken from its torpor and make us proud once again.

          Bob in AZ

  6. mattcarmody says:

    our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

    Like there weren’t questions of legitimacy from the very beginning.