蔡沛倫：Hamdan v United States

/in /by

Pei-Lun Tsai
Ph.D. student, School of Law,
University of Nottingham

On 16 October 2012, the United States (US) Court of Appeals District of Columbia Circuit reversed the decision of the US Military Commission convicting Salim Ahmed Hamdan, Osama bin Ladan’s former personal driver and bodyguard, for material support for terrorism and ordered the conviction be vacated.  In addition, Hamdan was also the petitioner of a famous 2006 US Supreme Court case, Hamdan v Rumsfeld.  Different aspects of the law of war were involved in these two judgments, and this contribution attempts to briefly introduce the background and the 2006 Supreme Court case, identify the main issues in the 2012 Court of Appeals case, and outline the responses to the judgement so far.

Background,  Hamdan v Rumsfeld (2006), and Its Aftermath

Salim Ahmed Hamdan, a Yemani national, travelled to Afghanistan in 1996 and undertook trainings at an al Qaeda camp.  He subsequently became a driver for the organisation, and later a personal driver and body guard of Osama bin Ladan.  In November 2001, while driving a vehicle carrying anti-aircraft missiles, he was captured and turned over to US authorities, who later transferred him to Guantanamo Bay, Cuba in June 2002.  He was considered as an “unlawful enemy combatant” by the US and tried by a military commission for terrorism-related offenses.  He filed petitions for writs of habeas corpus and challenged the military commission’s authority to try him, arguing that the commission was not authorised by any congressional act, and that the relevant procedures were inconsistent with both US law and international law.  The case eventually reached the level of the US Supreme Court, and the Court opined that, among other issues, the military commission failed to satisfy the standard set forth in US Uniform Code of Military Justice and the 1949 Geneva Conventions.

After Hamdan v Rumsfeld, US Congress enacted a new statute – Military Commissions Act of 2006 – and authorised the prosecution of violations of laws of war.  In particular, the 2006 Act provided a specific list of war crimes, including material support for terrorism, that could be charged by the military commissions.  On the basis of the 2006 Act, Hamdan was charged and convicted with material support for terrorism and sentenced to 66-month imprisonment in August 2008.  Considering the time he had already served in prison, his sentence expired in late 2008, and in January 2009, he was transferred to and released in Yemen.  However, Hamdan continued to appeal his military commission conviction, which led to the Court of Appeals case in point, Hamdan v United States.

Hamdan v United States (2012)

In Hamdan v United States, Hamdan appealed his conviction, and the US Court of Appeals District of Columbia Circuit (the Court) was essentially faced with three issues: a) whether the Hamdan’s release rendered the appeal moot; b) whether the Military Commission was authorised to prosecute him for material support for terrorism “on the sole basis of the 2006 Military Commissions Act” despite the fact that his conduct pre-dated the Act; and c) if the 2006 Act cannot serve as the basis for his conviction, whether, at the time of Hamdan’s conduct (1996-2001), international law considered material support for terrorism as a war crime, since the applicable statute (10 USC §821) only authorised military commissions to try violations of the “law of war”.

Firstly, regarding the issue of mootness, the Court drew on previous Supreme Court cases and concluded that a conviction, either in a criminal or military commission case, carried collateral legal consequences.  In other words, when a convicted person is tried for a new offense, the past conviction would be taken into consideration in the new trial.  Such consequences are evidence of the effect that a successful appeal can bring, even after the defendant’s release.  The Court therefore pronounced that the case was not moot.  As for the second issue, the Court began by analysing the language of the 2006 Military Commissions Act.  The Court observed that Congress was aware of the concern of retroactive application but did not consider that the Act created new war crimes, thereby causing the controversy of retroactive application and violating the limit of legislative power stipulated in the US Constitution.  While the Court disagreed with Congress’ position that all crimes listed in 2006 Act existed under pre-existing law, the Court held that Congress did not intend to authorise the “retroactive prosecution” of conduct that took place prior to the Act’s enactment.  Noting courts’ tendency in previous cases to avoid providing an interpretation in breach of the Constitution, the Court interpreted that the 2006 Military Commissions Act did not retroactively punish new crimes.  Therefore, in order for Hamdan’s conviction to stand, there must be evidence that material support for terrorism was prohibited as a matter of war crime under international law at the time of the conduct.

In assessing whether material support for terrorism constituted a war crime before 2001, the Court looked into different sources of international law.  Firstly, the Court pointed out that there were no relevant international treaties considering material support for terrorism as a war crime.  By way of example, the Court referred to “the major treaties on the law of war” the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the 1949 Geneva Conventions and their lack of acknowledgement of material support for terrorism as a war crime.  Secondly, the Court discussed whether such acknowledgement existed in customary international law.  Though noting the difficulties in identifying customary norms, the Court stipulated it was “evident” that material support for terrorism was not a war crime under customary international law.  Here, the absence of recognition of material support for terrorism as a war crime in international treaties was again referred to by the Court.  In particular, the Court observed, while the statutes of international criminal court and tribunals provided lists of war crimes, none of them included materials support for terrorism.  Even though two of the statutes (those of the International Tribunal for Rwanda and of Special Court of Sierra Leon, respectively) categorise “terrorism” as a crime, material support for terrorism is not one.  Additionally, the Court pointed to the lack of acknowledgement in the jurisprudence of international criminal tribunals and in the writings of prominent international law scholars.  Further, there has not been a precedent where an individual is tried for material support for terrorism before an international criminal tribunal.  Nevertheless, the Court did admit the plausibility of arguing that “aiding and abetting a recognized international-law war crime such as terrorism is itself an international-law war crime”.  Still, the Court emphasised that the notion of “aiding and abetting” differed from that of “providing material support” in terms of conduct, mens rea requirements, causation standards, etc, and Hamdan was not charged with aiding and abetting acts of terrorism.

Finally, the Court examined the Government’s argument that certain cases from the Civil War era served as evidence of the recognition of material support for terrorism as a war crime.  The Court again refuted the argument by stating that a) those precedents did not involve actual charges of material support for terrorism; b) the nature of the Civil War commissions that adopted those cases were different from that of the Military Commission in the present case, and thus those cases only had limited “precedential value”; and c) those cases could at most illustrate that the material support for terrorism was a crime as a matter of “US common law of war”, not of international law.

With the considerations above, the Court reasoned that neither international law existed at the time of Hamdan’s conduct (for which he was convicted), nor at the time of the judgment, recognised material support for terrorism as a war crime.  Following the Court’s opinion regarding the non-retroactivity of the 2006 Military Commissions Act, the fact that material support was not a war crime at the time of Hamdan’s conduct effectively rendered Hamdan’s conviction erroneous.  The Court consequently ordered that the conviction be vacated.

Concluding Remarks – Responses to Hamdan v United States

On the one hand, commentators have pointed out that the Court of Appeals avoided discussing certain issues, such as whether during the time of Hamdan’s conduct, 1996-2001, the US was in fact engaging in an armed conflict with al Qaeda,[1] and whether the US Congress has the power to define an offense as a war crime even though it is not recognised as such under international law.[2]  On the other hands, many have welcomed the Court of Appeals’ decision in Hamdan v United States and considered that the Court has taken a correct step in outlawing the US military commission’s convictions on the basis of “war crimes” that exist only in the Military Commissions Act of 2006 and not under the international laws of war.  The military commission system, with its prolonged process, contested procedures, and questionable credibility, has long been subjected to criticism and calls for re-examining the choice of forum to try detainees facing terrorism-related charges.  The judgement in Hamdan v United States could potentially challenge many of the convictions and verdicts adopted by the military commissions. Nonetheless, it remains unclear how and to what extent the military commission system itself would be affected as the US government is still reviewing the judgement.

External Links:

 

[1] David Frakt, Military Commissions: A Failed Experiment, JURIST – Forum, 23 October 2012, http://jurist.org/
forum/2012/10/david-frakt-hamdan-commissions.php.

[2] Steve Vladeck, Three (Early) Observations on Judge Kavanaugh’s Analysis in Hamdan, Lawfare Blog, 16 October 2012, http://www.lawfareblog.com/2012/10/three-observations-on-judge-kavanaughs-analysis-in-hamdan/.