D.C. Circuit strikes blow against military commissions in Hamdan v. U.S.

The Court of Appeals for the D.C. Circuit recently dealt a blow to the military commissions used as a substitute for civilian trials to try alleged enemy combatants, holding that the retroactive application of the Military Commissions Act violates the Constitution. While the military commissions used to convict detainees have been criticized by civil and human rights advocates, efforts to try suspects in federal court have stalled in the face of political opposition.

Following the September 11, 2001 terrorist attacks, President George W. Bush issued an executive order establishing military commissions to prosecute alleged al Qaeda members and “aiders and abettors.” Salim Hamdan, Osama bin Laden’s driver and body guard, was captured in November 2001. He was then tried in a military commission as an unlawful enemy combatant and was eventually convicted of conspiracy. Hamdan challenged the President’s authority to set up war crimes tribunals. In 2006, Hamdan v. Rumsfeld reached the Supreme Court, which held that President Bush’s military commissions violated the Geneva Conventions and Uniform Code of Military Justice without Congressional authorization. The Court suggested that Congress make clear the scope of the President’s authority. In response, Congress passed the 2006 Military Commissions Act (MCA), which expanded the President’s power to try alleged enemy combatants in military tribunals.

The government then charged Hamdan with conspiracy and with material support of terrorism, one of the new charges added by the MCA. The D.C. Circuit found that the 2006 Military Commissions Act essentially created new illegal acts in violation of the Constitution. The court explained that no international treaty made material support a crime, nor was it a crime under customary international law. It’s not even in the military handbook on the law of war. Under the Constitution, the government cannot retroactively charge Hamdan for acts made illegal after they were committed. 

Salim Hamdan’s has already finished serving his sentence and may not be greatly affected by the decision in his case. However, the D.C. Circuit’s holding undermines the legitimacy of many of the military commissions’ past convictions; as Adam Serwer explains in Mother Jones, “[e]very single detainee at Gitmo who has been convicted by military commission has been at some point charged with material support for terrorism . . . . And it's not just material support charges that could be affected. Conspiracy charges, which were also not a war crime under United States law before 2006, could be thrown out for similar reasons.”

Serwer also explains why the military commissions charge detainees with material support so frequently: “prosecutors love material support charges because they're vague and relatively easy to prove. Material support often involves conduct that might not necessarily be violent—like driving bin Laden's car or cooking his food—that somehow helps a terrorist group.”

It is interesting to note that the D.C. Circuit Judge that wrote the opinion in Hamdan v. U.S., Judge Brett Kavanaugh, a George W. Bush nominee who is a favorite of conservatives. 

Alliance for Justice has strongly opposed the distortion of our legal system during the “War on Terror,” including calling for accountability for those who enacted and carried out the torture of detainees in American custody. To find out more and watch our 2009 film Tortured Law and read about AFJ’s efforts to fight back against these abuses.

Will Military Commissions Act Gain Legitimacy?

The Senate Armed Services Committee held a hearing today on the proposed amendments to the military commissions responsible for trying the detainees at Guantanamo Bay. Three major themes were evident throughout the hearings: the desirability of trying detainees in Article III federal courts versus trying them in the proposed military commissions and where such trials took place; raising the legal standards under which the military commissions operate to match or exceed those required in international law; and, whether the proposed changes would help regain legitimacy in prosecuting the detainees.

Most of the discussion centered on the debate between trying detainees in federal courts versus military commissions. Several of the Republican Senators argued against trying any detainees in Article III federal courts because, they alleged, that would lead to the recognition of constitutional rights for detainees. But David Kris, Assistant Attorney General for the National Security Division at the Department of Justice testified that regardless of the form of trial used due process rights have already been recognized by the Supreme Court.

The hearing also focused on three major proposed changes to the military commissions: (1) the shift in the burden of proof in admitting hearsay; (2) barring statements coerced through torture or other cruel, inhuman, or degrading treatment; and, (3) defendants’ rights to choose their defense counsel. And, every panelist agreed that the military commissions should hew closely to the Uniform Code of Military Justice requirements, departing only when absolutely necessary as required by law.

All changes to the commissions ultimately address whether, moving forward, the commissions will gain legitimacy. Vice Admiral Bruce E. MacDonald, Judge Advocate General of the Navy, stated that a good test of this would be whether America would be willing to try one of its own soldiers in such a system.