Wednesday, August 06, 2008
What Are the "War Crimes" For Which Hamdan Was Convicted?
Marty Lederman
Under current U.S. domestic law, this alleged conduct would be a crime. Between 1996 and late 2001, however, such conduct was probably not criminal under U.S. domestic law. In any event, Hamdan was not tried for violating U.S. domestic law -- he was convicted for violating an alleged law of war.
http://www.defenselink.mil/news/d2007Hamdan%20-%20Notification%20of%20Sworn%20Charges.pdfThis raises at least
two huge legal questions. First, the charges themselves require that there have been an "armed conflict" during the period in question -- and the laws of war only permit trial of offenses committed within the period of an armed conflict. It's not clear which, if any, of Hamdan's alleged acts occurred after September 11, 2001 -- and it also is uncertain whether the conflict that triggers the laws of armed conflict commenced before 9/11/01, when al Qaeda engaged in other terrorist acts against the U.S. Four Justices in Hamdan thought the armed conflict did not begin until September 2001 (see note 31 of the Stevens opinion); but it remains an unresolved question.
Second, it is not clear that Hamdan's conduct of "material support" to terrorism (and, in Specification 2, to al Qaeda), in the form of of transportation and "body guard" services, was conduct that violated the laws of war in the period from 1996 to 2001. Judge Allred ruled (see page 2 here) 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 after the fact. Were these forms of "material support" to terrorist acts -- or, even more broadly,to an organization that commits terrorist acts (Specification 2) -- a violation of the laws of war between 1996 and 2001? A very interesting and important question. See pages 3-6 of Judge Allred's opinion, in which he holds that even though there is no recognition of such a war crime in any international instruments, or U.S. field manuals, and even though the Congressional Research Service found no historical support for it, there is some evidence of similar "support" conduct being tried by military tribunals in the Civil War, and thus it was within Congress's broad authority under the Law of Nations Clause to determine that such conduct was a war crime when Hamdan acted. Whether that holding is correct will be a major issue on appeal.
* * * *
Perhaps even more important are the charges on which Hamdan was acquitted, at least three of which deal with the allegation that he was delivering surface-to-air missiles to the Taliban in Afghanistan. Now, such a delivery of missiles would probably make someone detainable. But what's the theory under which it is a war crime? The
government's argument is that any attempt, like this one, to aid in the killing of U.S. forces on a battlefield is a violation of the laws of armed conflict
if it is committed by an unprivileged combatant, i.e., a nonuniformed person.This is a fairly radical theory -- that any belligerency by nonprivileged persons is itself a war crime. If I'm not mistaken, it would mean that CIA officials and many U.S. Special Forces are not only regularly violating the domestic laws of the nations where they operate, but are committing war crimes. Can that be right? Kevin Heller doesn't think so. Yet that is the basis of many of the war crimes charges the Pentagon has brought against other detainees. Judge Allred's charge to the jury in the Hamdan case failed to reflect the government's broad theory, and the jury acquitted Hamdan of the charges as they were specified by Judge Allred. The answer to this important question, then, apparently will have to await another case.
more at:
http://balkin.blogspot.com/2008/08/what-are-war-crimes-for-which-hamdan.html
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