When is a war crime not a war crime? When it is invented by the executive branch and Congress and implemented for six years until a profoundly conservative appeals court strikes it down.
The invented war crime is “providing material support to terrorism.” On October 16 a three-judge panel of the U.S. Court of Appeals, D.C. Circuit, threw out the conviction of Salim Hamdan, a driver for Osama bin Laden, who had received a five-and-a-half-year sentence for “providing material support to terrorism” after his trial by military commission in August 2008. (He was freed just five months later, since his sentence included time served.)
In its ruling the court stated, “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.”
For anyone who has followed the history of the military commissions in any depth, the result was not completely unexpected. Revived by the Bush administration in November 2001, specifically for trying prisoners seized in the “war on terror,” the commissions were struck down by the Supreme Court in June 2006. Later they were revived by Congress, when “providing material support to terrorism” and “conspiracy” were included as war crimes, even though there was no precedent for doing that.
When the Obama administration revived the commissions in 2009, senior figures — Jeh Johnson, general counsel of the Department of Defense, and David Kris, assistant attorney general for the national security division of the Department of Justice until 2011 — argued against retaining “providing material support to terrorism” in the legislation, arguing that it could be overturned on appeal. Kris testified at a Senate Armed Services Committee hearing that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is NOT a traditional law of war offense, thereby reversing hard-won convictions, and leading to questions about the system’s legitimacy.” Johnson told the committee, “After careful study, the administration has concluded that appellate courts may find that ‘material support for terrorism’ — an offense that is also found in Title 18 — is not a traditional violation of the law of war.”
Congress, however, failed to acknowledge their warnings.
For those like me, who have been critical of judges on the D.C. circuit court for gutting habeas corpus of all meaning for the Guantánamo prisoners, the result was surprising. When it comes to the prisoners’ habeas-corpus petitions, judges on that court have insisted, in defiance of well-researched evidence to the contrary, that the information the government relied on as evidence should be regarded as presumptively accurate. As a result, after a spate of well-deserved victories by 38 prisoners from 2008 to 2010, not a single prisoner has won in the last two and a half years, and several successful petitions have been overturned.
The judges who have been particularly prominent when it comes to undermining habeas corpus are senior judges A. Raymond Randolph and Laurence H. Silberman, and Judge Janice Rogers Brown. Judge Brett M. Kavanaugh, who wrote the opinion in Hamdan v. United States of America as part of a panel that also included Chief Judge David B. Sentelle and Senior Judge Douglas H. Ginsburg, has also lent his support.
In March 2011, for example, Judge Kavanaugh wrote a notorious opinion reversing the successful habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman, granted in February 2010, even though the only evidence against him, as the district judge had recognized, was derived from prisoners who had been held at “black sites” and subjected to torture.
Although the D.C. circuit court’s habeas rulings continue to cast a monstrous shadow of injustice over the detention of prisoners at Guantánamo, its ruling on the military commissions strikes a powerful blow to the legitimacy of those trials.
Hamdan was charged with conspiracy, as well as with providing material support to terrorism, although he was acquitted of the former charge by his military jury. Of the seven men convicted in trials by military commission — or through plea deals — only one, the Australian, David Hicks, who pleaded guilty in March 2007, was charged solely with providing material support to terrorism, meaning that his conviction should also be quashed.
However, it is possible that the charge of conspiracy will also wither under scrutiny. The test of this is forthcoming in an appeal filed on behalf of Ali Hamza al-Bahlul, who was convicted of conspiracy and material support for creating a propaganda video for al-Qaeda and given a life sentence in November 2008 after a one-sided trial in which he refused to mount a defense.
Moreover, al-Bahlul is not alone. Four men have been found guilty or have accepted plea deals. One of them, Ibrahim al-Qosi, a Sudanese man freed as a result of his plea deal last July, pleaded guilty to one count of conspiracy and one count of providing material support to terrorism in July 2010. Another Sudanese man, Noor Uthman Muhammed, also pleaded guilty to providing material support to terrorism and conspiracy in February 2011 — and is scheduled to be freed in December 2013.
The cases of Majid Khan and Omar Khadr (transferred to Canadian custody in September) are more complex. Khan accepted a plea deal on the basis of his involvement in plotting acts of terrorism and his work with Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks. Khadr, notoriously, was obliged to plead guilty to killing a U.S. soldier in wartime in a country occupied by U.S. forces while he was just 15 years old — an act that the Obama administration has the nerve to regard as a war crime.
As Barack Obama prepares for his second term, the Hamdan ruling leaves him with a discredited trial system at Guantánamo, whose credibility he cannot rescue. As the law professor Steve Vladeck explained in an analysis of the ruling for the Lawfare blog wrote,
If [the] decision is a loss for anyone, it’s a loss for the commission system itself, in which, without any dissent, the trial judge and Court of Military Commission Review held that it was simply beyond question that MST [providing material support to terrorism] was a recognized violation of the international laws of war. That view received exactly zero votes from a very conservative panel of a court that has not exactly been sympathetic to claims by Guantánamo detainees. It’s hard to imagine a stronger rebuke of the quality (or lack thereof) of the legal reasoning employed by the military commission or by the CMCR — and that repudiation may be where [the] decision has the greatest long-term ramifications.
If Obama is paying attention, it may be wise to make plans to do what he promised to do in November 2009, but then backed down from when he was criticized, and that is to prosecute those charged with genuine terrorist offenses — Khalid Sheikh Mohammed and his four co-accused, and a handful of other men — in federal court, and to abandon the discredited military commissions once and for all. That will not remove the stench of torture from the cases of the “high-value detainees” or overcome the failure to hold accountable those who authorized the torture, but it would close the door on at least one terrible legacy of the Bush years.
It would also be wise to stop pretending that peripheral figures — such as Salim Hamdan, David Hicks, Noor Uthman Muhammed, and Omar Khadr, who, at one time or another, have been put forward for military commission trials — are guilty of war crimes and to send them home, along with the 86 prisoners still held at Guantánamo (out of 166 in total) who have been cleared for release for many years, but who are still held because of the political games and presidential cowardice that typified Obama’s first term in office.