Rachel Browning’s Legal Blog

Today, a U.S. military tribunal established by Congress through the Military Commissions Act (MCA), convicted Salim Hamdan of five of the ten charges brought against him by the U.S. government:  those involving his alleged “Material Support for Terrorism,” an offense Congress declared to be a war crime in the MCA.   Hamdan, Osama bin Laden’s former driver and occasional “body guard,” was acquitted, however, on the other five charges based on a conspiracy theory – that Hamdan had “willfully joined an enterprise of persons who shared a common criminal purpose…to commit (certain) offenses,” including attacks on protected property, attacks against civilians, murder and destruction of property in violation of “the law of war,” hijacking of vessels or aircraft, and terrorism.  For a specific list of all the charges, see the charge sheet. 

To prove the charge of providing “material support for terrorism,” the government had to show that by providing transportation and body guard services to bin Laden and other terrorists, he knowingly or intended that these services would directly facilitate “communication and planning used for acts of terrorism.”  The elements of the crime of providing “material support,” are similar to those of conspiracy, except that with the latter charge, the support had to be for al Qaeda, the organization, and in furtherance of its more general goals.  Under current U.S. domestic law, such conduct now constitutes a crime, but between 1996 and late 2001, it most likely did not.  Still, the MCA grants the military commission tribunals jurisdiction over “any offenses made punishable by the (MCA) or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001,” (my emphasis) which gives the court pretty wide latitude over just about any act committed by those labeled unlawful enemy combatants.

It also raises several legal issues that I’m sure will be a source of further debate over the military commissions act and the fates of the remaining Guantanamo detainees.  First of all, the subject matter jurisdiction of the MCA, according to the text of the statute, includes acts committed in violation of the “laws of war,” which, (until recently anyway) require the existence of an actual “armed conflict.”  Where the laws of war are implicated, offenses committed against them must have occurred during the specific period of armed conflict, which in this case, according to the jurisdictional bases of the MCA - before, on, or after September 11, 2001­ – seems to be an infinite period of time.  Not surprisingly, the justices could not even agree amongst themselves when said armed conflict began – four thought it didn’t begin until after the attacks of 9/11, while the other two suggested it had begun before this date, perhaps as early as 1998, with the attacks on the U.S. Embassies in Kenya and Tanzania.

Secondly, pre-9/11, the existence of an “armed conflict,” triggered adherence to certain legal standards outlined by the Geneva Conventions, those “quaint,” out-dated provisions pertaining to international conflict that Congress and the Bush Administration specifically sought to avoid by passing the MCA. 

Then there’s the issue of whether Hamdan’s “material support” to terrorism through his transportation and “body guard” services, was conduct that violated the laws of war in the period from 1996 to 2001.  One justice went so far as to say that if such conduct was not a war crime at the relevant time, then Congress is barred by the Ex post Facto Clause from designating such conduct as a war crime now.

Finally, the most unusual aspect of this ruling had to do with one of the charges for which Hamdan was acquitted.  The government alleged that Hamdan’s possession of surface-to-air missiles, allegedly being delivered to the Taliban in Afghanistan was a war crime under a conspiracy theory, in that he provided aid in the killing of U.S. forces on the field of battle.  This, the government argued, constituted a violation of the laws of armed conflict because it was committed by an “unprivileged combatant,” someone not officially part of armed hostilities, otherwise known as someone not wearing a uniform.  It is under this theory that many “unlawful enemy combatants” are being held by the U.S. at Guantanamo Bay, Cuba, but it is a broad theory that, if upheld by the U.S. courts could have far-reaching implications on the definition of “war crime,” and the determination of who has committed one.  Where would this leave members of the CIA, private contracting companies, or other special forces who have “supported” our military in its efforts in Iraq and Afghanistan?  Obviously the question remains unanswered at this point.  But there will be more trials like this one and certainly additional appeals through which the legal justifications and constitutionality of the MCA could be put to the ultimate test.  How it all ends is anyone’s guess.