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Print This PageWhy Hamdan’s Material Support Convictions Violate the Ex Post Facto Clause
As Marty points out in his post, whether convicting Hamdan of “material support for terrorism” (MST) violates the Ex Post Facto Clause will be a major issue in Hamdan’s appeal. Having now read Judge Allred’s decision carefully, I strongly disagree with his conclusion that it does not.
Judge Allred’s framing of the ex post facto issue (p. 3) is unobjectionable: “the question here is whether “Material Support for Terrorism, criminalized by 10 U.S.C. 950v(b)(25), is sufficiently well established as a violation of the law of war.” Equally unobjectionable is his assertion (p. 5) that because “Congress has acted under its Constitutional authority to define and punish offenses against the law of nations,” the appropriate standard for whether a war crime is “well established” is the one articulated in United States v. Bin Laden: “the acts in question are recognized by at least some members of the international community as being offenses against the law of nations” (emphasis mine).
The problem is that the evidence Judge Allred adduces in support of his conclusion that material support for terrorism has traditionally been recognized as a war crime does not even satisfy that low standard. To begin with, consider the evidence Allred mentions (p. 3) that material support has not traditionally been considered a war crime:
1. The UN Special Rapporteur on human rights has concluded that material support for terrorism”go[es] beyond offences under the laws of war.”
2. American military tribunals have never tried material support for terrorism.
3. The War Crimes Act does not list material support for terrorism.
4. The Congressional Research Service has concluded that material support for terrorism does not appear to be supported by historical precedent.
5. Material support for terrorism is not mentioned in the Hague Conventions, the Rome Statute, or the Statutes of the ICTY, ICTR, and Special Court for Sierra Leone.
Now consider the Government’s arguments to the contrary (p.3).
1. Violations of Common Article 3, such as “violence to life and person” of those “taking no active part in hostilities,” are war crimes under the War Crimes Act.
The existence of those war crimes is irrelevant, because — as I explain at length below — they are fundamentally different than the “war crime” of material support for terrorism, 10 U.S.C. 950v(b)(24).
2. Material support for terrorism has been a violation of federal law, even when committed extraterritorially, since 1993.
That is also irrelevant — the fact that the U.S. has traditionally considered material support for terrorism to be a domestic crime does not help establish that the “international community” (or even the U.S. itself) has traditionally considered it to be a war crime.
3. UN Security Council Resolutions 1189 and 1373 condemn terrorism and require member states to criminalize it.
Yes — but they do not require member States to criminalize terrorism as a war crime. Resolution 1373, the Terrorist Financing Convention, specifically requires States to ensure that “such terrorist acts are established as serious criminal offences in domestic laws and regulations.” (My thanks to John Ip for pointing this out to me.) And neither of the terrorist bombings referenced in Resolution 1189 — in Nairobi and Dar-es-Salaam — even took place during armed conflict.
4. The US is a party to twelve international conventions that prohibit various kinds of terrorism.
Same problem — the decision does not identify the particular conventions, but none of the major terrorism conventions require States Parties to criminalize terrorism as a war crime.
5. U.S practice during the Civil War supports the war crime of material support for terrorism.
Judge Allred presents evidence (pp.4-5) — Congressional documents, General Orders, military treatises — that “suggests the existence of an offense similar to providing material support for terrorism” during the Civil War. He puts particular emphasis on a statement in an 1894 Congressional document that says, regarding “rebels… that… furnish the enemy with arms, provisions, clothing, horses and means of transportation,” that “[a]ll such persons are by the laws of war in every civilized country liable to capital punishment” (emphasis in the original).
That’s it. The sum total of the evidence in Judge Allred’s decision that supports the idea that the “international community” has traditionally viewed material support for terrorism as a war crime consists of two things: (1) U.S. practice during the Civil War concerning an offense “similar” to material support; and (2) a statement in a U.S. congressional report claiming that the laws of war in all civilized countries permit the execution of rebels who materially supported the enemy.
That evidence cannot possibly satisfy the Bin Laden standard. At best, U.S. practice during the Civil War establishes that one member of the international community — the U.S. itself — has traditionally considered MST-like actions to be war crimes; it does not establish that “at least some members of the international community” have done so. And the bare assertion in the congressional document is simply that: a bare assertion. Judge Allred does not offer any examples of “civilized countries” executing rebels who materially supported the enemy, nor does Justice Thomas in his dissent in Hamdan v. Rumsfeld, which is what Judge Allred cites (p. 5) — Justice Thomas simply provides a list of American courts-martial. Saying it does not make it so — especially when, as Judge Allred himself acknowledges, all of the international evidence (summarized above) is to the contrary.
There is another fundamental problem with the decision. As noted above, Judge Allred concludes that the Civil War evidence suggests that the US traditionally recognized a war crime similar to material support for terrorism. Indeed, he even suggests (p.5), referring to the “guerillas” of the Civil War era and those who “join, belong to, act, or co-operate” with them, that “in modern parlance, they might be referred to as terrorists, or those who provided material support for terrorism.”
With due respect to Judge Allred, nothing could be further from the truth. Quoting 10 U.S.C. 950v(b)(24), Judge Allred defines a “terrorist” as:
[A]ny person… who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life…
Notice the ellipsis? Here is the complete definition of a terrorist in sec. 950v(b)(24):
Any person… who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct.
The intent to influence government conduct is the gravamen of terrorism under sec. 950v(b)(24) — what distinguishes a terrorist act from an ordinary war crime. By itself, in other words, intentionally killing or inflicting great bodily harm on a protected person is simply “murder of a protected person” or “attacking civilians.” That conduct only becomes the “war crime” of terrorism when that harm is, in addition, “calculated to influence or affect the conduct of government or civilian population by intimidation or coercion.”
That is a critical difference, because nothing in Judge Allred’s decision indicates that the Civil War-era crimes tried by military commissions were calculated to influence government conduct. Indeed, the decision specifically acknowledges (pp. 5, 6) that the individuals who committed those crimes usually acted “for motives of personal profit or revenge” — the antithesis of the motivation for terrorism. It is thus simply not true that, “in modern parlance,” persons who committed or supported those crimes “might be referred to as terrorists, or those who provided material support for terrorism.”
U.S. practice during the Civil War, in short, does not “suggest[] the existence of an offense similar to providing material support for terrorism” during the Civil War. At most it suggests (1) the existence of the war crimes of murdering a protected person and of attacking civilians; and (2) the possibility of prosecuting a person who aided and abetted one of those crimes.
We thus end where we began, with the ex post facto standard articulated by United States v. Bin Laden and adopted by Judge Allred, according to which Congress’ power to define “offenses against the law of nations” is limited to those acts that “are recognized by at least some members of the international community as being offenses against the law of nations.” As we have seen, not even the United States counts toward that standard regarding the “war crime” of material support for terrorism — in which case the number of members of the interntional community who have traditionally viewed material support for terrorism as a war crime is precisely zero. Hamdan’s convictions for that crime thus violate the Ex Post Facto Clause.
Kevin,
I haven’t read the entire ruling and am not impressed with what the court portrays as the government’s argument.
I want to look at the issue more closely, but it seems to me that there is at least an argument that material support to terrorism is merely a specific instance of a prohibited indiscriminate attack (similar to how genocide is generally a specific instance of otherwise prohibited conduct under art. 7 of the Rome Statute). The fact that it has a specific intent requirement could be argued as (1) merely more restrictive than otherwise prosecutable attacks against protected persons prohibited by IHL and (2) necessary to properly define the terrorist act as an act of war. As Clausewitz said, and I am paraphrasing, ‘war is the continuation of politics by other means.’ The political motivation (as one could argue describes the specific intent provisions) of the terrorist act could be argued as essential to distinguishing the act as one of war by a non-state actor vs. a random criminal act.
If this is all a fair reading, and I am only saying it might be, then material support to such acts could be viewed as participation in a joint criminal enterprise to commit indiscriminate attacks in violation of IHL. The problem is that JCE is not generally an independent crime, it is a form of complicity. I am not sure the form of the offense as defined in the MCA necessarily fits within it.
I am just throwing this out there as something that comes to mind. It is hard for me not to view 9-11 as an act of war.
John
at 10:44 am EST John C. Dehn
I thought the difference between bushwackers, guerrillas, marauders and the like on the one hand, and partisans, on the other, was that the former groups operated on their own authority rather than that of a belligerent party. While Partisans were considered a public enemy, bushwackers etc. weren’t. In other words, the bushwacker types were just civilians who were taking advantage of the wartime chaos for personal gain. They were treated as common criminals and punished (sometimes as directed by military commission, although civilian courts could be used as well). While many authorities refer to such offenses as “violations of the law of war,” it wasn’t really a “war crime” as such, because no belligerent party incurred responsibility for the actions. It seems to me that if al Qaeda is considered a party to the armed conflict, the analogy of its members to Civil War era bushwackers in inapt.
From what I recall, military commissions were used for “violations of the laws and customs of war” like providing contraband to the enemy and other sorts of supporting activities, but civilians charged with such crimes resided in Union States. See, e.g., Davis, A treatise on the military law of the United States : together with the practice and procedure of courts-martial and other military tribunals. 310 and n.2 (2nd ed., rev. New York, 1899, c1898). Allegiance to the United States would likely have been an element of the charge in such a case. (And anyway, didn’t ex parte Milligan effectively put an end to that sort of thing?)
at 11:43 am EST Jennifer Elsea
The military is arguing that the common law of war prohibited as a war crime the conduct of providing material support for terrorism and that common law was merely codified by the MCA.
Western common law of war has recognized terrorism in the form of piracy and brigandage as a malum in se war crime since at least Roman times, whose perpetrators withdrew themselves from the realm of humanity and could be warred upon and summarily killed by all peoples without fear of “punishment nor moral anguish.” Mikkel Thorup provides some of the numerous authorities for this proposiiton in a talk entitled “The horror of the ’enemy of humanity’ – on pirates, terrorists and states” which he delivered at Mansfield College, Oxford last year.
Lincoln codified this millennium old common law of war to Confederate terrorists/brigands in Section IV of his General Orders No. 100, prescribing execution for these marauders. Moreover, western common law universally has recognized accomplice liability for both civilian and war crimes. War crimes most certainly are not limited only to those who personally commit the murders and other atrocities. For example, the Nuremberg trials indicted Gustav Krupp (not tried for poor health) and convicted Albert Speer, Walther Funk and Julius Streicher for support of various Nazi war crimes which they did not personally direct or perpetrate under what are essentially theories of accomplice liability.
Thus, Hamdan’s military prosecutors and Judge Allred were quite correct to note that common law or war accomplice liability as applied to the supporters of Confederate brigands pursuant to General Orders 100 during the Civil War was an example of “the laws of war in every civilized country.”
at 12:54 pm EST Bart DePalma
Jennifer,
The question of marauders is separate from this discussion so far as I am concerned. You are correct regarding the focus of military commissions. In addition to Winthrop, Military Law and Precedent, there are good recent articles by Glazier and Bickers (not that I fully agree with either).
The essential issue is whether a non-state actor can engage in war. The answer to that in both domestic and international law is yes. Art. 1 of AP II provides a non-exclusive set of criteria for that as a matter of international law. The best examples of that in U.S. law (to my mind) are the Indian Depredation Act cases, and now the 2006 S.Ct. Hamdan case. The Prize Cases also establish the principle that belligerent (or “public enemy” if you like) status can be conferred on an armed group otherwise not a “state” under international law, at least in the context of a civil war. There is an open question regarding who has power to do that.
Milligan did not address the central issue of the MCA military commissions or the issue being discussed here. It addressed whether the citizen of a loyal state during the Civil War could be subjected to military tribunals in the face of an act of Congress directing that such cases be sent to the Art. III courts. The majority said “no” unless the state of armed conflict had basically closed the courts. (The infamous and oft-selectively-read concurring opinion said Congress could authorize it, but hadn’t in that case. If I remember correctly, both opinions - but definitely the majority - noted that a civilian grand jury failed to even indict Milligan.)
Quirin is the most relevant precedent. It distinguished Milligan on domestic use of military commissions in large part because the “enemy combatant” status of defendants was clear. (Some scholars - such as Goldsmith - also claim that political pressure forced the Court’s hand.) Yamashita also reviewed the traditional domain of military commissions in the course of its opinion, and is relevant to the question of what may be properly considered a law of war violation.
The bottom line question here, implicit in my earlier post, is whether the substance (not the label) of Hamdan’s conduct was reasonably believed by Congress to be a violation of IHL. That question might turn on the JCE issue that I identified above, assuming the rest of my analysis is accurate.
There is another issue, though, being missed here. I am also writing about that right now, and hope to have it out before Hamdan’s appeals are complete.
Best to all,
John