Crimes, War Crimes and the War on Terror

[jmm99]

See my post in another thread, Pres. Obama's Signing Statement on the NDAA.

Regards

Mike

[Polarbear1605]

Lessons from Haditha's Quiet Denouement
By Jonathan F. Keiler January 30, 2012 American Thinker
Six years ago, in Haditha, Iraq, in the wake of a deadly insurgent attack on their convoy, a Marine quick reaction force raided several houses from which they were taking fire. At the conclusion of the action it became clear that a number of Iraqi civilians had been killed, which was duly reported up the Marine Corps chain of command. The command determined that while the deaths were unfortunate, the engaged Marines had not violated the laws of war.
Then, early in 2006, a reporter from Time Magazine got wind of the incident, and all hell broke loose. An Army report condemned the Marines, Democrat Congressman John Murtha announced that Marines had killed Iraqi civilians in "cold blood," and the press in general had a field day. Under this new assault, the Marine Corps changed its tune and preferred court-martial charges against eight Marines, from enlisted men to battalion commander. These unfortunate men were accused of everything from obstruction of justice to murder.
Over the next two years the Haditha cases fell apart. One after another, the eight accused Marines were exonerated in Article 32 hearings, saw charges dropped in return for immunity, or were acquitted at trial. By 2008, only a single remaining Marine, Staff Sergeant Frank Wuterich, stood accused of unpremeditated murder in the case. His case lingered until last week, when it too died with a whimper. Wuterich pled guilty to a much-reduced charge of dereliction of duty. What did the military justice system finally determine was Wuterich's crime? He told his men to "shoot first and ask questions later." After all, his men were Marines, not policemen.
Wuterich received no jail time and no loss of pay, but he saw his rank reduced to private.
The Haditha incident's quiet denouement demonstrates what is right and wrong with America's military justice system, and the dangers of turning combat troops into a heavily armed constabulary.
Clearly Marine commanders' early instincts in the case were correct, but the Corps subsequently allowed itself to be bulldozed into a Dickensian legal farce. This was a function not only of bad publicity and political pressure, but of the increasingly legalistic nature of the armed forces in general. Like other areas of American society, the military is over-lawyered and increasingly hamstrung by its own rules and regulations.
Through most of American history the primary function of JAG officers was implementing commonplace military justice. JAGs prosecuted or defended soldiers, sailors, and Marines over the usual array of misbehavior endemic in any organization made up largely of aggressive young men. But after Vietnam, with the introduction of the all-volunteer military and correspondingly increasingly qualified enlistees, common criminal conduct declined. That might have led to a decline in JAG billets, but of course, just the opposite happened. Military lawyers, like their civilian counterparts, were quick to find other pressing needs for their services, until today, almost every military function is subject to some degree of legal review, including combat.
Beginning in the 1980s, during my own service as an Army JAG, the military introduced the concept of "operational law." Now JAGs would ensure that "all U.S. military operations complied strictly with the laws of war." Select JAGs moved from their offices into the TOCs (Tactical Operation Centers) of every unit from corps to battalion.
Perhaps there has been some positive benefit in placing JAGs close to the sharp end, but it's not very evident. Rather, at least anecdotally, it appears that the profusion of legal expertise in (or at least near) the trenches has led to increasingly complex rules of engagement, and the occasional suspension of otherwise necessary operations. Can a JAG viewing a video feed of a potential drone strike determine any better than the operational commander whether civilians would be put at risk?
Still, commanders in the field don't seem to mind having the JAGs around, because JAGs provide a level of insulation against legal jeopardy -- the same way corporate lawyers insulate executives. But is this really the way to fight wars?
The Haditha legal fiasco might help answer the question. The battalion involved in the Haditha incident had its own operational lawyer on hand, Marine Captain Randy Stone. While it appears that he was not consulted before the Marines launched their assault, in the wake of the incident, he vetted their accounts and determined that the laws of war had not been violated. For this Captain Stone found himself among the eight Marines initially charged! Stone endured an Article 32 investigatory hearing (the military equivalent of a grand jury), but eventually charges against him were dropped.
When the operational lawyers are being charged along with the soldiers and Marines they are supposed to be operationally advising, something indeed is wrong with the system.
The real problem is that one person's legitimate military operation is another's war crime, and the so-called "laws of war" have little to do with it. We saw this most compellingly in the idiotic and corrupt Goldstone investigation of Israel's 2008 Cast Lead Operation. There Israeli forces, which also operate in close consultation with their attorneys, were castigated for dozens of alleged war crimes, when, in fact, the Israelis acted with almost unprecedented care and forbearance during the conflict. Ultimately Judge Goldstone repudiated his own report, and even Hamas admitted that its own military losses were almost exactly what the IDF had claimed, but the damage had already been done. Israel's JAGs, no more than America's, did not make much of a difference.
America's conflicts in Iraq and Afghanistan (as with Israel's in Gaza) have been wars of relatively low intensity, against generally incompetent adversaries, which has allowed our forces to play around with operational law concepts without catastrophic consequences. Almost certainly soldiers and Marines have died or been unnecessarily maimed due to adherence to complex and unrealistic rules of engagement. But those are small tragedies that would be difficult to prove.

http://www.americanthinker.com/2012/...#ixzz1ky7spSte

Comments?

[jmm99]

In Al-Zahrani v U.S., a D.C. Circuit panel held the Federal courts have no jurisdiction to hear "wrongful death claims" arising from detainees' deaths during detention:

Factual History

While the parties are in disagreement over the precise events that led to the deaths of appellants’ decedents, much of the general background is undisputed. Beginning in January of 2002, Yasser Al-Zahrani, Jr., a citizen of Saudi Arabia, and Salah Ali Abdullah Ahmed Al-Salami, Jr., a citizen of Yemen, were detained at the United States military base at Guantanamo Bay, Cuba, as “enemy combatants.” In 2004, under the then current procedure of the United States military, Combatant Status Review Tribunals reviewed the detention of the two and confirmed the earlier determination that both detainees were enemy combatants. On June 10 of 2006, both men, along with a third detainee, died. Although the cause of death is the subject of dispute in the current litigation, a Naval Criminal Investigative Service report concluded that the deaths were the result of suicide by hanging.
...
On January 7, 2009, the plaintiffs, as fathers of the two named decedents, filed an action against the United States, twenty-four named, current, or former officials of the United States, and one hundred unnamed “John Doe” officials of the United States, seeking money damages relating to the deaths of the two detainees and alleging that the defendants had subjected the decedents to torture, arbitrary detention, and ultimately, wrongful death. The defendants moved for the dismissal of plaintiffs’ by-then amended complaint. The district court dismissed the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief could be granted.

The district court's decision under Rule 12(b)(6) was limited to dismissal of the claim as pleaded. It would not be precedent for dismissal of other claims pleaded differently by other parties, allegedly arising from any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien by the U.S.

In October of 2006, Congress enacted the Military Commissions Act. Section 7 of the MCA included a two-pronged constraint on the subject-matter jurisdiction of all Federal courts, justices and judges, in cases brought by or on behalf of "an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

The exact structure of the statute is as follows:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005 - the DTA review process in the Court of Appeals], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

28 U.S.C. § 2241(e)(1) and (2).

Boumediene v. Bush, 553 U.S. 723, 787-92 (2008), held Section 7 unconstitutional. However, that case (an application for a writ of habeas corpus) focused on the Constitution's Suspension Clause (U.S. Const. art. I, § 9, cl. 2) as its sole rationale for holding Section 7 to be unconstitutional.

If Congress had elected not to deal with habeas writs, it might have passed a single-pronged statute along these lines:

Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005 - the DTA review process in the Court of Appeals] and except for applications for writs of habeas corpus, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The Suspension Clause clearly would not apply to this posited statute.

However, SCOTUS in Boumediene did not get into the fine points of severance and separability of the clauses in a two-pronged statute. Its conclusion as to what it held was:

Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007).

The Plaintiffs in al-Zahrani argued that Boumediene should be taken literally.

The D.C. Circuit panel disagreed. First, federal courts constitutionally have limited subject-matter jurisdiction, which can be further limited by legislation:

Analysis

Federal courts are courts of limited subject-matter jurisdiction. A federal court created by Congress pursuant to Article III of the Constitution has the power to decide only those cases over which Congress grants jurisdiction.
...
For a case or controversy to fall within the authority of an inferior court created under Article III of the Constitution, the Constitution must have supplied to the courts the capacity to take the subject matter and an Act of Congress must have supplied jurisdiction over it. ... Therefore, rather than proceed to weigh the adequacy of the complaint to state a claim, as did the District Court, we first examine the jurisdiction of the courts to entertain plaintiffs’ claims and find that jurisdiction wanting.

The D.C. Circuit panel quoted Section 7 (as above); and then dealt with Boumediene:

We have previously held in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), that the Act means what it says. It is true that the Supreme Court, in its review of our decision in Boumediene, found § 7 of the MCA to be constitutionally defective. Boumediene v. Bush, 553 U.S. 723, 787-92 (2008). However, the Boumediene appeal involved a decision applying the first subsection of § 7 governing and barring the hearing of applications for writs of habeas corpus filed by detained aliens. The Supreme Court’s conclusion that the statute unconstitutionally stripped the courts of jurisdiction to review habeas corpus petitions relied on the Suspension Clause of the Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Subsection 2 of the MCA, which governs and bars the present litigation, has no effect on habeas jurisdiction. The Suspension Clause is not relevant and does not affect the constitutionality of the statute as applied in “treatment” cases.

We have said as much already. In Kiyemba v. Obama, 561 F.3d 509, 512 n.1 (D.C. Cir. 2009), we noted that the Supreme Court’s reference to § 7 in Boumediene did not specify a particular subsection of 28 U.S.C. § 2241(e), “but its discussion of the Suspension Clause clearly indicates it was referring only to that part of § 7 codified at § 2241(e)(1).” We reiterate our reasoning from Kiyemba. In that case, we recognized that the Supreme Court’s decision in Boumediene had stricken the bar to federal court jurisdiction over habeas claims, but as we noted above, further recognized that the reasoning of the Supreme Court applied only to the stripping of habeas jurisdiction. “[O]rdinarily a court should invalidate as little of an unconstitutional statute as necessary to bring it into conformity with the Constitution.” Kiyemba, 561 F.3d at 512. We therefore presume that the Supreme Court used a scalpel and not a bludgeon in dissecting § 7 of the MCA, and we uphold the continuing applicability of the bar to our jurisdiction over “treatment” cases.
...
Conclusion

For the reasons set forth above, we hold that 28 U.S.C. § 2241(e)(2) deprives this court of jurisdiction over appellants’ claims. We further hold that the Supreme Court did not declare § 2241(e)(2) unconstitutional in Boumediene and the provision retains vitality to bar those claims. We therefore conclude that the decision of the District Court dismissing the claims should be affirmed, although for a lack of jurisdiction under Rule 12(b)(1) rather than for failure to state a claim under Rule 12(b)(6).

By taking the jurisdictional approach, the D.C. Circuit panel effectively barred in the D.C. Circuit all "other actions" (except habeas, which has very limited remedial value) brought by or on behalf of an alien "against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

The plaintiffs' remedies are to request review en banc by all the D.C. Circuit judges, or review by SCOTUS (both discretionary with those courts).

Regards

Mike

[jmm99]

hearts and minds - a major "why" for the Haditha courts-martial. The use of legalisms and SJAs is driven by policy, not by those instruments of policy.

The juxtaposition of the D.C. Circuit decisions over the last two years, with the Haditha courts-martial, is to say the least "ironic". That is especially so in light of al-Zahrani and its refusal to hear "wrongful death claims" on behalf of deceased alien enemy combatants, present and future, regardless of their merits.

Discussion of the merits and materiality of "hearts and minds" belongs elsewhere. The dominant viewpoint in my little rural haven is pretty much that of Kyle Steiner from Restrepo.

Regards

Mike

[jmm99]

Mjid Shoukat Khan is a Pakistani national, who lived in the US on 9/11 and subsequently became a member of AQ. His plea shortened his military commission trial. We have (HT to Lawfare):

Statement by Chief Prosecutor Mark Martins
The Stipulation of Facts
Pre-Trial Agreement
Appendix A of the Pre-Trial Agreement

From the Statement:

Chief Prosecutor Mark Martins

Remarks at Guantanamo Bay on 29 February 2012

Good afternoon. Today, following his initial appearance and arraignment, a military commission accepted the voluntary guilty plea of Mjid Shoukat Khan to serious violations of the law of armed conflict. Mr. Khans conviction, based upon irrefutable and lawfully obtained evidence, means that he will likely spend between 19 and 25 years in confinement measured from this day forward as punishment for his crimes. Because the supporting evidence also establishes, unassailably, that he joined with and materially supported al Qaeda, Mr. Khans conviction affirms that his years of detention to date have been grounded in strong legal authority.

Even for those who have long been familiar with Mr. Khans detention and unlawful belligerent status in connection with al Qaeda, and even for all of you who observed the proceedings today, it is instructive to examine the offenses of which Mr. Khan has now been convicted and to review the supporting evidence now on the record. Mjid Shoukat Khan is a Pakistani national who lived in the United States from 1996 to early 2002 before returning to Pakistan. The commission has now established to the highest standard of proof in our legal system that Mr. Khan joined with members of al Qaeda in Pakistan to plan and prepare attacks against diverse targets in the United States, Indonesia, and elsewhere after Sept. 11, 2001. ... (much more in the Statement)

Some irony might be found between today's successful MCA result and President Obama's Sec. 1022 Waivers of Military Detention yesterday.

WH 1022 Fact Sheet
Presidential Policy

Of course, the waivers are allowed, not required. So, it depends on who the decisions-makers are.

Regards

Mike

[tequila]

Some irony might be found between today's successful MCA result and President Obama's Sec. 1022 Waivers of Military Detention yesterday.

How many successful MCA results have there been, and the success rate, vice those of civilian trials?

[jmm99]

ready at hand because they are not material to my "Select Any of Three Paths Position" (see diagram & below).

TVNSA Flow Chart 2011.jpg

I suspect the datasets (MCA vs civilian) are not comparable anyway; and could be argued to support whatever position the arguer wants to support.

There have been a much greater number of Federal court cases. A high percentage of them have resulted in convictions. For example, we had the Detroit bomber recently plead guilty and receive a life sentence.

My suggestion is that both paths (MCA and Federal courts) should be open, if what you want to do is prosecute criminally. Which path to select depends on the facts of each case. A third option (acceptable to me) is not to prosecute criminally and simply detain for the duration of the armed conflict. Guidelines should be generalized and should not be straitjackets.

The left is very much opposed to MCA trials. The right is very much opposed to Federal court trials. The seven waiver situations have become something of a litmus test as to where a person stands politically.

The WH Fact Sheet makes it crystal that President Obama has decided that waivers shall be granted if any of the seven situations occur. That to me is the clear meaning of this language (emphasis added by JMM in all quotes below):

In addition, the President has decided to waive application of Section 1022 at the outset in a number of specific situations where it serves our national security interests, including by avoiding harm to our counterterrorism efforts. Specifically, as certified in the procedures issued today, the President has determined it is in the national security interests of the United States to waive the military custody requirement of Section 1022 in the following circumstances ... [listing the 7 waiver situations]. ...

So, from the Executive's point of view, it's a done deal.

The WH has spelled out the default COA following arrest by Federal law enforcement agencies, which is civilian law enforcement and clearly not military custody (from the WH Fact Sheet):

Under these procedures, a federal law enforcement agency arresting a terrorist suspect must notify the Attorney General when there is probable cause to believe the suspect is covered by the statute – or when a suspect might be a “covered person” -- and therefore potentially subject to the military custody requirement of Section 1022.

If the Attorney General initially agrees that there is probable cause to believe that the individual is covered by the statute, a careful review commences to determine whether there is clear and convincing evidence that the military custody requirement applies, and to determine whether the requirement should be waived in the interests of national security.

The Attorney General, in consultation and coordination with other senior national security officials, makes this determination based on the facts, circumstances, and all relevant information in the possession of the U.S. government.

The Attorney General may issue a final determination that an individual is a covered person who must be transferred to military custody only with the concurrence of Secretary of State, Secretary of Defense, Secretary of Homeland Security, Chairman of the Joint Chiefs of Staff, and Director of National Intelligence.

Before any transfer of an individual to military custody occurs, the Director of the FBI must determine that the transfer will not disrupt any ongoing intelligence collection or compromise any national security investigation, as is expressly contemplated by the statute.

Finally, even in the event that an individual is transferred to military custody, the statute expressly recognizes that there are a number of different options for the individual’s ultimate disposition. These options may include transfer back to law enforcement custody for trial in federal court; continued military detention until the end of the conflict with al-Qa’ida; transfer for trial by a military commission, or transfer to a foreign government. Therefore, as specifically envisioned by the NDAA, an individual required to be held in military custody under Section 1022 may ultimately be returned to law enforcement custody for criminal trial.

The "covered person" process (quoted above) does not extend outside of Federal law enforcement (WH Fact Sheet):

Under the implementing procedures, the process described above for determining whether a terrorist suspect is covered by the statute and potentially subject to military custody does not apply to individuals captured, arrested, detained by, or otherwise taken into the custody of the Department of Defense, state and local law enforcement agencies acting under their authorities, or a foreign government. In short, the “covered person” determination process applies only to those arrested by or taken into the custody of the FBI or another federal law enforcement agency.

However, those non-Federal LEA detainees are still subject to the seven situations where military custody has been waived (WH Fact Sheet):

• When placing a foreign country’s nationals or residents in military custody will impede counterterrorism cooperation;

• When a foreign government indicates that it will not extradite or transfer suspects to the United States if the suspects may be placed in military custody;

• When an individual is a U.S. lawful permanent resident who is arrested in this country or arrested by a federal agency on the basis of conduct taking place in this country;

• When an individual has been arrested by a federal agency in the United States on charges other than terrorism offenses (unless such individual is subsequently charged with one or more terrorism offenses and held in federal custody in connection with those offenses);

• When an individual has been arrested by state or local law enforcement, pursuant to state or local authority, and is transferred to federal custody;

• When transferring an individual to military custody could interfere with efforts to secure an individual’s cooperation or confession; or

• When transferring an individual to military custody could interfere with efforts to conduct joint trials with co-defendants who are ineligible for military custody or as to whom a determination has already been made to proceed with a prosecution in a federal or state court.

In any given case, the facts will be to some extent indeterminate. The "law" (here the "seven brides for seven brothers") will also be indeterminate. It depends on the policy viewpoint of the decision-maker.

The WH Fact Sheet ends on an "all options are on the table" note:

Scope and Impact of Section 1022:

It is important to recognize that the scope of the new law is limited. Section 1022 does not apply to U.S. citizens, and the President has decided to waive its application to lawful permanent residents arrested in the United States. An individual required to be held in military custody under Section 1022 may be returned to law enforcement custody for criminal trial. In addition, Section 1022 does not change the FBI’s authorities to respond to terrorism threats and these procedures do not apply to any individuals held in the custody of the Department of Defense, state and local law enforcement agencies acting under their authorities, or a foreign government.

Finally, a determination by the executive branch that the military custody requirement of the Section 1022 does not apply or should be waived in a particular context does not affect the executive branch’s discretion to use any lawful disposition option that is in the interest of U.S. national security. Such a determination means only that there is no statutory requirement to place an individual in military custody.

The result here is compatible with my "Select Any of Three Paths Position"; so, I've no personal insult to avenge. The last quoted sentence is a classic in legal draftsmanship to arrive at a point 180 degrees from where one started.

I did find irony in this "Left Hand" of the Obama Administration being issued at the same time as its "Right Hand" announcing its success under the MCA.

Regards

Mike

[jmm99]

The AP, Gitmo war crimes court surprises some observers (By BEN FOX, March 5, 2012), has been told that about 35 Gitmo prisoners will probably be tried by military commissions. Seven MCA convictions have been obtained by jury verdicts or guilty pleas.

A majority of the remaining 171 prisoners will be not be prosecuted; but, they will be held in military detention until the USG declares the 2001 AUMF's armed conflict ended (e.g., the 1964 Tonkin Gulf AUMF was terminated by Congress), or until individual detainees are released by the Executive.

From the AP article:

Officials have said that about 35 prisoners at Guantanamo could eventually be tried in the first U.S. war crimes tribunals since the World War II era. That group includes five men accused of plotting the Sept. 11 attacks who are expected to be arraigned later this year on charges that carry a potential death penalty. It also includes a Saudi accused of helping set up the deadly bombing of the USS Cole in 2000 in another capital case.

But lower-level figures so far have appeared to fare better. Khan pleaded guilty to charges that included murder, attempted murder and spying for helping al-Qaida plot attacks in the U.S. and delivering money for a deadly hotel bombing in Indonesia. He will receive a sentence that cannot exceed 19 years, if he helps prosecute other prisoners, and could end up receiving less.

Omar Khadr pleaded guilty to throwing a grenade that mortally wounded an American soldier and received a sentence capped at eight years. He could be sent back to his native Canada, where some expect he will be quickly released. The Toronto-born Khadr was 15 when he was captured, and his advocates say he was abused early in his captivity. Still, he could have received a life sentence at the commission, and a civilian U.S. court would likely have given him one.

Two other men who pleaded guilty to aiding al-Qaida also secured deals that will get them home in the next several years. Salim Hamdan, who was convicted by a military jury of aiding terrorism in his work as a driver for Osama bin Laden, was sentenced to 5 1/2 years, including time served, and is back home in Yemen, reportedly working as a taxi driver.

The exception has been Ali Hamza al-Bahlul, who helped al-Qaida produce propaganda and handled media relations for bin Laden and refused to participate in his trial. He was convicted in November 2008 of multiple counts of conspiracy, solicitation to commit murder and providing material support for terrorism, and is serving a life sentence at Guantanamo.

Under the Intelligence Authorization Act, the DNI is required to issue a Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba. As of as of 29 December 2011, 599 detainees had been released by transfer with a confirmed reengagement rate of 15.9%, and an added 12% suspected.

Here is the summary:



Note that none of these transferred detainees were released by compulsion of a Federal court. The DC Circuit has specifically held that Federal courts do not have jurisdiction to compel the Executive to release a non-citizen Gitmo detainee. Thus, the orders granting habeas to detainees have been "advisory opinions" in effect.

Regards

Mike

[Surferbeetle]

Mike,

So many interesting things, so little time...

The rule of law assessments by my legal beagle CA brothers & sisters were always very interesting.

Wonder if this is applicable, helpful, correct?

Guiding Principles for Stabilization and Reconstruction, Section 7 Rule of Law

Regards,

Steve

[jmm99]

I thought this thread, Rule of Law in Iraq & Afghanistan, was a better place for a Civil Affairs discussion of the Rule of Law. So, Surf's up - here.

Regards

Mike

[jmm99]

The 9th Circuit has had a Damascus Moment. HT to Lawfare.

Ninth Circuit (En Banc) Vacates Millenium Bomber’s 22-Year Sentence as Too Lenient:

The government appeals the sentence imposed by the district court upon Ahmed Ressam, the so-called “Millennium Bomber,” as substantively unreasonable. We review a challenge of that nature under what the Supreme Court has described as “the familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

Ressam was convicted by a jury on nine counts of criminal activity[1] in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport, commonly known and referred to by its airport code “LAX.” His plan was for the attack to occur on the eve of the new millennium, December 31, 1999.

[1] Specifically, Ressam was convicted of (1) conspiring to commit an act of terrorism transcending national boundaries, in violation of 18 U.S.C. § 2332b(a)(1)(B); (2) conspiring to place an explosive in proximity to a terminal, in violation of 18 U.S.C. § 33; (3) possession of false identification documents in connection with a crime of violence, in violation of 18 U.S.C. § 1028(a)(4) and (b)(3)(B); (4) use of a fictitious name for admission into the United States, in violation of 18 U.S.C. § 1546; (5) making false statements on a customs declaration, in violation of 18 U.S.C. § 1001; (6) smuggling explosives into the United States contrary to law, in violation of 18 U.S.C. § 545; (7) transportation of explosives, in violation of 18 U.S.C. §§ 842(a)(3)(A) and 844(a); (8) possession of an unregistered destructive device, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871; and (9) carrying an explosive during the commission of a felony, in violation of 18 U.S.C. § 844(h)(2).

The advisory Sentencing Guidelines imprisonment range for Ressam’s convictions was calculated by the district court to be 65 years to life. That calculation has not been challenged by either party. The district court sentenced Ressam to a term of imprisonment of 22 years, plus five years of supervised release.

Upon our review of the record, we have a definite and firm conviction that the district court committed a clear error of judgment in sentencing Ressam as it did. As a result, we conclude that the sentence imposed by the district court was substantively unreasonable. We vacate the sentence and remand the case to the district court for resentencing.

Regards

Mike

[jmm99]

SCOTUS (in today's orders) denied certiorari without comments in seven Gitmo habeas cases: Latif, Al-Bihani, Uthman, Almerfedi, Al-Kandari, Al-Madhwani, and Al-Alwi.

In all of these cases, the DC Circuit held against the detainees' claims of illegal detention. Thus, the DC Circuit decisions will stand.

SCOTUS also denied review in Lebron v. Rumsfeld (a civil action by Jose Padilla). In that case, the 4th Circuit held against Padilla's claims.

Two posts at Lawfare briefly discuss today's orders by SCOTUS (link & link).

Regards

Mike

[davidbfpo]

From a friend a commentary on 'Caught between human rights and terrorism' looking at India and Malaysia:http://www.sunday-guardian.com/analy...-and-terrorism

The cited article from a Singapore think-tank is:http://www.rsis.edu.sg/publications/...SIS0882012.pdf

[jmm99]

This thread started 5 years ago with Hamdan. So, for old times sake, a 5-part post on the DC Circuit opinion reversing the lower courts and setting aside the "material support of terrorism" charge upon which Hamdan was convicted.

Opinion for the Court filed by Circuit Judge KAVANAUGH, with whom Chief Judge SENTELLE joins except as to footnote 6, and with whom Senior Judge GINSBURG joins except as to footnotes 3, 6, and 8.

Introduction

It is most important to understand that this opinion does not question either the direct action "kill" option, or the "capture, detain & interrogate" option. In fact, it endorses indefinite detention for the duration.

pp.2-4 pdf

KAVANAUGH, Circuit Judge: The United States is at war against al Qaeda, an international terrorist organization. ... That war continues.

In war, when the United States captures or takes custody of alien enemy combatants or their substantial supporters, it may detain them for the duration of hostilities. Moreover, the United States may try unlawful alien enemy combatants before military commissions for their war crimes. See Hamdi v. Rumsfeld, 542 U.S. 507, 518-24 (2004); Ex parte Quirin, 317 U.S. 1, 26-45 (1942).
...
Hamdan was not just detained at Guantanamo as an enemy combatant. He was also accused of being an unlawful enemy combatant and was tried and convicted by a military commission for “material support for terrorism,” a war crime specified by the Military Commissions Act of 2006. See 10 U.S.C. § 950t(25); see also 10 U.S.C. § 950v(b)(25) (2006) (previous codification of same provision). Hamdan’s conviction was based on actions he took from 1996 to 2001 – before enactment of the Military Commissions Act. At the time of Hamdan’s conduct, the extant federal statute authorized and limited military commissions to try violations of the “law of war.” 10 U.S.C. § 821.

Issues and Conclusions

The Court nicely summarized the issues and its conclusions - as to which, all three judges agreed.

pp.4-5 pdf

This appeal presents several issues.

First, is the dispute moot because Hamdan has already served his sentence and been released from U.S. custody?

Second, does the Executive have authority to prosecute Hamdan for material support for terrorism on the sole basis of the 2006 Military Commissions Act – which specifically lists material support for terrorism as a war crime triable by military commission – even though Hamdan’s conduct occurred from 1996 to 2001, before enactment of that Act?

Third, if not, did the pre-existing statute that authorized war-crimes military commissions at the time of Hamdan’s conduct – a statute providing that military commissions may try violations of the “law of war,” 10 U.S.C. § 821 – proscribe material support for terrorism as a war crime?

We conclude as follows:

First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

Thus, acts committed before the 2006 MCA was enacted (e.g., the events of 9/11) are subject to the international law standard for war crimes imposed by then-current 10 U.S.C. § 821 !!

The Rule and Exceptions

The Court's rule is clear; but so are its stated exceptions to the rule.

pp. 9, 11 pdf

Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated. [1] ...

[1] Our judgment would not preclude detention of Hamdan until the end of U.S. hostilities against al Qaeda. Nor does our judgment preclude any future military commission charges against Hamdan – either for conduct prohibited by the “law of war” under 10 U.S.C. § 821 or for any conduct since 2006 that has violated the Military Commissions Act. Nor does our judgment preclude appropriate criminal charges in civilian court. Moreover, our decision concerns only the commission’s legal authority. We do not have occasion to question that, as a matter of fact, Hamdan engaged in the conduct for which he was convicted.

... At Guantanamo, Hamdan not only was detained as an enemy combatant but also was eventually charged with one count of conspiracy and was to be tried before a military commission as an unlawful enemy combatant who had committed war crimes. [2] ....

[2] Generally speaking, enemy soldiers or combatants are considered unlawful enemy combatants when they, for example, join or support an organization waging unlawful war or they commit specific “acts which render their belligerency unlawful.” Ex parte Quirin, 317 U.S. 1, 31 (1942). For purposes of the war against al Qaeda, this concept is now defined by statute. See 10 U.S.C. § 948a.

....
When his sentence ended later in 2008, the war against al Qaeda had not ended. Therefore, the United States may have continued to detain Hamdan as an enemy combatant. See Hamdan, 548 U.S. at 635; Hamdi v. Rumsfeld, 542 U.S. 507, 518-24 (2004). But in November 2008, Hamdan was transferred by the U.S. Military to Yemen, and he was then released on or about January 8, 2009, in Yemen. ...

Those who are now saying that non-prosecuted detainees must now be released are woofing up the wrong tree.

- cont -

[jmm99]

The Court dealt with the issue of Mootness (pp.11-13 pdf) - discussion omitted here. The bulk of the decision deals with pre-MCA law and retroactivity of the 2006 MCA (pp.13-27 pdf). Before going there, two caveats should be recognized. Both caveats apply to the relative supremacy of interenational law vice the powers guaranteed by the US Constitution and statutes enacted thereunder.

Caveat One: Independent Article I Congressional War Powers

The other two judges decided not to discuss this.

pp.15-16, note 6 pdf

[6] Judge Kavanaugh alone concurs in this footnote.

Because the question of Congress’s Article I power to make material support for terrorism a war crime has been thoroughly briefed and argued, because that question is logically antecedent to the ex post facto issue, and because of the importance of deciding wartime cases in a way that provides clear guidance, Judge Kavanaugh believes it appropriate to address the antecedent question – as the Supreme Court itself did in resolving similar antecedent issues in both Hamdi and Hamdan. See Hamdi, 542 U.S. at 516-24, 533-34 (resolving several “threshold” questions, including whether enemy combatants may be detained for the duration of hostilities, before concluding that the procedures used to detain Hamdi were insufficient); Hamdan, 548 U.S. at 593-94 (resolving antecedent question whether relevant statutes generally authorized military commissions, before concluding that the commission in Hamdan’s case contravened separate statutory limits).

Here, Judge Kavanaugh would conclude that Congress has authority under Article I, § 8 to establish material support for terrorism as a war crime that, when committed by an alien, may be tried by military commission. Although material support for terrorism is not yet an international-law war crime, Congress’s war powers under Article I are not defined or constrained by international law. The Declare War Clause and the other Article I war powers clauses do not refer to international law, unlike the Define and Punish Clause. Moreover, Congress has long prohibited war crimes beyond those specified by international law. See 10 U.S.C. § 904 (aiding the enemy); id. § 906 (spying); cf. Quirin, 317 U.S. 1.

The U.S. Constitution does not give the international community – either directly, or indirectly through the vehicle of international law – a judicially enforceable veto over Congress’s exercise of its war powers. Put simply, the United States may be a leader in the international community, not just a follower, when Congress authorizes war against a terrorist organization or makes crimes such as material support for terrorism war crimes triable by military commission. To be sure, it is often prudent for Congress and the President to coordinate closely with the international community and pay careful attention to international law when authorizing war and enacting war crimes. But those policy factors, political realities, and international-law considerations are not constitutional constraints incorporated into the Article I war powers clauses and thereby enforceable in U.S. courts.

Caveat Two: Customary International Law

All three judges agreed that "customary international law" is a sticky, tricky wicket.

pp.22-24

Customary international law is a kind of common law; it is the body of international legal principles said to reflect the consistent and settled practice of nations. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation”). It is often difficult to determine what constitutes customary international law, who defines customary international law, and how firmly established a norm has to be to qualify as a customary international law norm. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).[10]

[10] Although customary international law, including the customary international law of war, contains some well-defined prohibitions at the core, the contours of customary international law are imprecise. That imprecision provides good reason for Congress and the Executive, when they want to outlaw violations of perceived international-law norms, to enact statutes outlawing specific conduct, rather than simply prohibiting violation of something as vague as “international law” or “the law of nations” or the “law of war.” Congress has done so in many recent statutes, including the Military Commissions Act of 2006. Pub. L. No. 109-366, 120 Stat. 2600 (2006). See also War Crimes Act of 1996, Pub. L. No. 104-192, 110 Stat. 2104; Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992); Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891.

At the same time, the imprecision of customary international law calls for significant caution by U.S. courts before permitting civil or criminal liability premised on violation of such a vague prohibition. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). A general prohibition against violations of “international law” or the “law of nations” or the “law of war” may fail in certain cases to provide the fair notice that is a foundation of the rule of law in the United States. Therefore, as the Supreme Court required in an analogous context in Sosa, and as the plurality suggested in Hamdan, imposing liability on the basis of a violation of “international law” or the “law of nations” or the “law of war” generally must be based on norms firmly grounded in international law. See Sosa, 542 U.S. at 724-38; Hamdan, 548 U.S. at 602-03 & n.34, 605 (plurality). In this case, the asserted norm has no grounding in international law, much less firm grounding.

Those caveats are both valid in my opinion.

- cont. -

[jmm99]

This brings us to the first of two parts dealing with the main body of the Court's decision - pre-2006 Law under 10 U.S.C. § 821 (pp. 13-14, 19-21 pdf)

General "Law of War" Violations - and Two Specifics: Spying and Aiding the Enemy - 10 U.S.C. § 821

pp.13-14 pdf

Under a law now codified at 10 U.S.C. § 821, Congress has long authorized the Executive to use military commissions to try war crimes committed by the enemy. See Ex parte Quirin, 317 U.S. 1 (1942). That statute authorizes military commissions to try violations of the “law of war” – a term, as we explain below, that has long been understood to mean the international law of war. See Hamdan v. Rumsfeld, 548 U.S. 557, 603, 610 (2006) (plurality); id. at 641 (Kennedy, J., concurring); Quirin, 317 U.S. at 27-30, 35-36. Two other longstanding statutes separately authorize military commission prosecutions for spying and aiding the enemy. See 10 U.S.C. §§ 904, 906.[4]

[4] The “aiding the enemy” proscription in 10 U.S.C. § 904, which was first codified in the Articles of War of 1806, see WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 102-03, 981 (rev. 2d ed. 1920), generally requires breach of a duty of loyalty as well as aid to the enemy. See Hamdan, 548 U.S. at 600-01 n.32 (plurality) (“aiding the enemy may, in circumstances where the accused owes allegiance to the party whose enemy he is alleged to have aided, be triable by military commission”). The breach of loyalty requirement is made explicit in the 2006 Military Commissions Act, which re-codified the crime. 10 U.S.C. § 950t(26) (“Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.”) (emphasis added).

"Law of War" under 10 U.S.C. § 821 = "International Law"

pp. 19-21 pdf

Analysis of this issue begins by determining what body of law is encompassed by the term “law of war” in 10 U.S.C. § 821. The Supreme Court’s precedents tell us: The “law of war” referenced in 10 U.S.C. § 821 is the international law of war.[8]

[8] It has been suggested that courts should not use international law as a free-floating tool to alter how the courts would otherwise interpret a domestic U.S. statute when the statute does not incorporate or refer to international law. See Al-Bihani v. Obama, 619 F.3d 1, 5-8 (D.C. Cir. 2010) (Brown, J., concurring in denial of rehearing en banc); id. at 9-23 (Kavanaugh, J., concurring in denial of rehearing en banc). But that interpretive issue is not implicated in this case. As Congress has often done, and as explained in an Al-Bihani concurrence, Congress here explicitly referred to international law and explicitly incorporated international norms into domestic U.S. law in 10 U.S.C. § 821 by means of the express cross-reference to the “law of war.” See id. at 10, 13-15 (Kavanaugh, J., concurring in denial of rehearing en banc) (explaining that distinction).

See Hamdan, 548 U.S. at 603 (plurality) (act is law of war offense when “universal agreement and practice both in this country and internationally” recognize it as such) (internal quotation marks omitted); id. at 610 (analyzing international sources to determine whether conspiracy was “recognized violation of the law of war”); id. at 641 (Kennedy, J., concurring) (“the law of war” referenced in 10 U.S.C. § 821 “derives from rules and precepts of the law of nations” and is “the body of international law governing armed conflict”) (internal quotation marks omitted); Quirin, 317 U.S. at 29 (“law of war” referenced in 10 U.S.C. § 821 is a “branch of international law”); id. at 27-28 (The “law of war” is “that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.”); see also Instructions for the Government of Armies of the United States in the Field (Lieber Code), General Orders No. 100, arts. 27 & 40 (Apr. 24, 1863) (describing the law of war as a “branch” of the “law of nations”); O.L.C. Memorandum from Patrick F. Philbin to Alberto R. Gonzales 5 (Nov. 6, 2001) (“laws of war” are “considered a part of the ‘Law of Nations’”); id. at 29 (“the term ‘law of war’ used in 10 U.S.C. § 821 refers to the same body of international law now usually referred to as the ‘laws of armed conflict’”). [9]

[9] See also Curtis A. Bradley & Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 GREEN BAG 2d 249, 256 (2002) (“As noted above, President Bush’s Military Order, 10 U.S.C. § 821, and Supreme Court precedent all indicate that the jurisdiction of military commissions extends (at least) to violations of the international laws of war.”); Maj. Michael A. Newton, Continuum Crimes: Military Jurisdiction Over Foreign Nationals Who Commit International Crimes, 153 MIL. L. REV. 1, 21 (1996) (“Therefore, the entire scope of history and American jurisprudence compel the conclusion that Article 21 grants jurisdiction only over violations of the international laws of war. The text of Article 21 leads to the same conclusion.”); Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AM. J. INT’L L. 328, 334 (2002) (“This statutory language” in 10 U.S.C. § 821 “acknowledges that the jurisdiction of military commissions is defined by the norms of the customary law of nations, namely, the law of war.”).

Even outside the context of 10 U.S.C. § 821, the term “law of war” in the U.S. Code and precedent generally refers to the international law of war. See Madsen v. Kinsella, 343 U.S. 341, 354 (1952) (The “law of war” includes that part of “the law of nations” which “defines the powers and duties of belligerent powers.”); Prize Cases, 67 U.S. 635, 667 (1863) (“The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war.”); Hearings on H.R. 2498 (UCMJ) Before the H. Comm. on Armed Servs., 81st Cong. 959 (1949) (Representative Overton Brooks, Chairman, House Subcommittee No. 1 on Armed Services: “What is a law of war?” Colonel John P. Dinsmore: “‘Law of war’ is set out in various treaties like the Geneva convention and supplements to that.” Representative Brooks: “International law.” Colonel Dinsmore: “Yes, sir.”); U.S. ARMY JAG, LAW OF WAR HANDBOOK 20 (Maj. Keith E. Puls ed., 2005) (identifying “customary international law” – that is, “the ‘unwritten’ rules that bind all members of the community of nations” during war as one of the two major sources of the law of war, along with conventional international law); MANUAL FOR COURTS-MARTIAL UNITED STATES, at I-1 (2012) (“The sources of military jurisdiction include the Constitution and international law. International law includes the law of war.”).

Judge Ginsberg withheld his agreement from footnote 8. Otherwise, all three judges agreed.

- cont. -

[jmm99]

The second part of the decision's main body was devoted to answering the historical question: "Whether material support for terrorism was an international-law war crime when Hamdan committed his acts in 1996-2001?" (pp.22-27 pdf).

The Court looked to a four part historical review.

Major Conventions on the Law of War

p.22 pdf

It is true that international law establishes at least some forms of terrorism, including the intentional targeting of civilian populations, as war crimes. See, e.g., Rome Statute of the International Criminal Court art. 8(2)(b), July 17, 1998, 2187 U.N.T.S. 90; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV), art. 33, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; COMMISSION OF RESPONSIBILITIES, CONFERENCE OF PARIS 1919, VIOLATION OF THE LAWS AND CUSTOMS OF WAR 17 (Clarendon Press 1919) (the Allied Nations condemned Germany for “the execution of a system of terrorism” after World War I).

But the issue here is whether material support for terrorism is an international-law war crime. The answer is no. International law leaves it to individual nations to proscribe material support for terrorism under their domestic laws if they so choose. There is no international-law proscription of material support for terrorism.

To begin with, there are no relevant international treaties that make material support for terrorism a recognized international-law war crime. Neither the Hague Convention nor the Geneva Conventions – the sources that are “the major treaties on the law of war” – acknowledge material support for terrorism as a war crime. See Hamdan, 548 U.S. at 604 (plurality); Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV), Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907, 36 Stat. 2277.

Prominent Modern International Tribunals

p.24 pdf

The 1998 Rome Statute of the International Criminal Court, which catalogues an extensive list of international war crimes, makes no mention of material support for terrorism. See Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90. Nor does the Statute of the International Tribunal for the Former Yugoslavia, the Statute of the International Tribunal for Rwanda, or the Statute of the Special Court for Sierra Leone. See Statute of the International Tribunal for the Former Yugoslavia, adopted by S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1159, 1192; Statute of the International Tribunal for Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955 (1994), reprinted in 33 I.L.M. 1598, 1602 (includes terrorism itself as a crime); Statute of the Special Court for Sierra Leone art. 3(d), Jan. 16, 2002, 2178 U.N.T.S. 138 (same). Nor have any international tribunals exercising common-law-type power determined that material support for terrorism is an international-law war crime.

Leading International Law Experts

pp.24-25

Commentators on international law have similarly explained that material support for terrorism is not an international-law war crime. See, e.g., ANDREA BIANCHI & YASMIN NAQVI, INTERNATIONAL HUMANITARIAN LAW AND TERRORISM 244 (2011) (“there is little evidence” that a proscription of “material support for terrorism” is “considered to be part of the laws and customs of war”). Nor is the offense of material support for terrorism listed in the JAG handbook on the law of war. See U.S. ARMY JAG, LAW OF WAR HANDBOOK (Maj. Keith E. Puls ed., 2005); see also Jennifer K. Elsea, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice 12 (CRS, updated Sept. 27, 2007) (“defining as a war crime the ‘material support for terrorism’ does not appear to be supported by historical precedent”) (footnote omitted).

US Civil War Cases

pp. 26-27

The Government latches on to a few isolated precedents from the Civil War era to prop up its assertion that material support for terrorism was a pre-existing war crime as of 2001 for purposes of 10 U.S.C. § 821. There are several independent reasons that those cases fail to support the Government’s argument.

First, the Civil War cases did not involve any charges of material support for terrorism. Instead, several cases involve guerillas who were punished for taking up “arms” as “insurgents” – that is, for direct attacks rather than material support. See, e.g., G.O. No. 15, HQ, Dep’t of the Mississippi (Apr. 3, 1862), 1 OR ser. II, at 472-76. Others were convicted of “joining, aiding and assisting a band of robbers and bandits” – in other words, what we would likely call aiding and abetting, not material support. G.O. No. 19, HQ, Dep’t of the Mississippi (Apr. 24, 1862), 1 OR ser. II, at 478. In short, those precedents are at best murky guidance here. Cf. Hamdan, 548 U.S. at 602 (plurality) (requiring “plain and unambiguous” precedent).

Second, those Civil War commissions were in part military tribunals governing certain territory – which are a separate form of military commission subject to a separate branch of law, and not the kind of law-of-war military commission at issue here. As others have suggested, their precedential value is therefore limited. See Hamdan, 548 U.S. at 596 n.27; id. at 608 (plurality) (The “military commissions convened during the Civil War functioned at once as martial law or military government tribunals and as law-of-war commissions. Accordingly, they regularly tried war crimes and ordinary crimes together.”) (citation omitted).

Third, and perhaps most to the point, those cases do not establish that material support for terrorism was a war crime recognized under international law as of 1996 to 2001 when Hamdan committed his conduct, which is the relevant inquiry under 10 U.S.C. § 821. The Government contends that those Civil War precedents illuminate what it calls the “U.S. common law of war” – not the international law of war. But the statutory constraint here imposed by 10 U.S.C. § 821 is the international law of war. As the Government told the Supreme Court in Quirin, “This ‘common law of war’ is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war.” Brief for the United States at 29, in Quirin, 317 U.S. 1 (emphasis added) (citation omitted). To be sure, U.S. precedents may inform the content of international law. But those Civil War precedents fail to establish material support for terrorism as a war crime under the international law of war as of 1996 to 2001. And even the Government admits that material support for terrorism was not an international-law war crime as of 1996 to 2001.

QED.

- cont. -

[jmm99]

This is my "Op-Ed".

What Effect on Current and Future MCA Prosecutions ?

1. For post-2006 actions alleged to be unlawful, the 2006 MCA (as revised in 2009) will provide the roadmap for specific charges - including "material support of terrorism".

2. For pre-2006 MCA Act actions alleged to be unlawful, the scope of military commission jurisdiction will be limited to war crimes recognized under international law at the time of the actions.

3. Effect on current 9/11 prosecutions of KSM, etc.- ??

What Effect on Future Strategy and Tactics ?

1. The direct action "kill" option will avoid a lot of legal complicatiuons.

2. If the "capture" option, then indefinite detention and interrogation will also avoid many legal complications.

3. In effect, why plan to prosecute these people at all ?

Regards

Mike

[davidbfpo]

I am sure this incident, a CIA kidnapping in Milan, Italy that went very wrong, has appeared on SWC before. Reminder:

The case centered on the CIA's "extraordinary rendition" of an Egyptian citizen, known as Abu Omar, from Milan to Cairo for interrogation. Upon release three years later, he claimed he was tortured and showed reporters multiple scars on his back.

Italian counterterrorism police were listening when he called his wife in Milan and described his kidnapping. With those details, they were easily able to track down the cell phone calls of the CIA snatch team and and trace the phones to their hotels and rental cars.

Now the Italian court has convicted in absentia three diplomats, including the CIA Station chief:http://spytalkblog.blogspot.co.uk/20...-in-italy.html

[jmm99]

HT to Wells Bennett at Lawfare, United States v. Daoud: Court Orders Disclosure of FISA Documents to Cleared Defense Counsel (by Wells Bennett, January 29, 2014). The Court's opinion is here.

Summary of case:

Defendant Adel Daoud is charged with attempting to use a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2)(D) and attempting to destroy a building by means of explosive in violation of 18 U.S.C. § 844(i). Daoud filed a motion for disclosure of Foreign Intelligence Surveillance Act of 1978 (“FISA”) related material and to suppress the fruits or derivatives of electronic surveillance and any other means of collection conducted pursuant to FISA or other foreign intelligence gathering[51]. This Court heard oral argument on this, and other motions, on 1/3/2014. For the reasons discussed below, the motion is granted in part and denied in part.

and Summary of decision:

In sum, this Court grants disclosure to cleared defense counsel of the FISA application materials and such disclosure will be made under an appropriate protective order. By this Order, this Court does not express any opinion with respect to the constitutionality of FISA or its procedures. Nor has this Court lost sight of the potential Classified Information Procedures Act (“CIPA”) issues that may be implicated by this disclosure, and resolution of those issues may result in the redaction of certain portions of the material. Lastly, this Court denies Daoud’s request to suppress all fruits of FISA surveillance without prejudice. Counsel for Daoud must present to the Court documentation of current valid security clearances at or before the next status hearing on February 6, 2014

This decision is ground-breaking though it is very consistent with the philosophy of Brady v Maryland and "Brady Disclosure". That being said, one suspects that the adverse public reaction to NSA metadata collection has much to do with the judge's decision.

Here is the basis for the Court's decision and rejection of a "state secrets" privilege in this fairly run-of-the mill terrorist case:

Attorney General Eric H. Holder, Jr., filed an affidavit stating under oath that disclosure of such materials would harm national security. See 50 U.S.C. §§ 1806(f), 1825(g). Attorney General Holder’s claim of privilege is supported by a classified declaration from an FBI official. Pursuant to FISA, the filing of an Attorney General affidavit triggers an in camera, ex parte procedure to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. 50 U.S.C. §§ 1806(f), 1825(g).

Once the in camera, ex parte procedure is triggered, the reviewing court may disclose such materials “only where such disclosure is necessary to make an accurate determination of the Case: 1:12-cr-00723 Document #: 92 Filed: 01/29/14 Page 3 of 5 PageID #:670 legality of the surveillance.” 50 U.S.C. § 1806(f); see also 50 U.S.C. § 1825(g). The Seventh Circuit has previously reviewed de novo the probable cause determination of the FISC, United States v. Dumeisi, 424 F.3d 526, 578 (7th Cir. 2005), and therefore this Court rejects the government’s request for deferential review. The factual averments and certifications used to support the government’s FISA warrant application are reviewed for clear error. United States v. Rosen, 447 F.Supp.2d 538, 546 (D.Va. 2006).

Here, counsel for defendant Daoud has stated on the record that he has top secret SCI (sensitive compartmented information) clearance. Assuming that counsel’s clearances are still valid and have not expired, top secret SCI clearance would allow him to examine the classified FISA application material, if he were in the position of the Court or the prosecution.

Furthermore, the government had no meaningful response to the argument by defense counsel that the supposed national security interest at stake is not implicated where defense counsel has the necessary security clearances. The government’s only response at oral argument was that it has never been done. That response is unpersuasive where it is the government’s claim of privilege to preserve national security that triggered this proceeding.

Without a more adequate response to the question of how disclosure of materials to cleared defense counsel pursuant to protective order jeopardizes national security, this Court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger of disclosure to cleared counsel. Upon a showing by counsel, that his clearance is still valid, this Court will allow disclosure of the FISA application materials subject to a protective order consistent with procedures already in place to review classified materials by the court and cleared government counsel.

While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds that the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment. Anders v. California, 386 U.S. 738, 743 (1967). Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984).

We'll see whether DoJ will appeal.

Regards

Mike