DOCSLIB.ORG

SALIM AHMED HAMDAN, Petitioner, V. UNITED STATES of AMERICA

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
SALIM AHMED HAMDAN, Petitioner, V. UNITED STATES of AMERICA USCA Case #11-1257 Document #1362775 Filed: 03/08/2012 Page 1 of 65 [Oral Argument Scheduled for May 3, 2012] No. 11-1257 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA SALIM AHMED HAMDAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. Appeal From The Court Of Military Commission Review (Case No. CMCR-09-0002) REPLY BRIEF OF PETITIONER SALIM AHMED HAMDAN Adam Thurschwell Harry H. Schneider, Jr. Jahn Olson, USMC Joseph M. McMillan OFFICE OF THE CHIEF DEFENSE Charles C. Sipos COUNSEL MILITARY COMMISSIONS Rebecca S. Engrav 1099 14th Street NW Angela R. Martinez Box 37 (Ste. 2000E) Abha Khanna Washington, D.C. 20006 PERKINS COIE LLP Telephone: 202.588.0437 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 Attorneys for Petitioner-Appellant Telephone: 206.359.8000 SALIM AHMED HAMDAN Attorneys for Petitioner-Appellant SALIM AHMED HAMDAN USCA Case #11-1257 Document #1362775 Filed: 03/08/2012 Page 2 of 65 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES The Certificate as to Parties, Rulings, and Related Cases is set forth in Petitioner-Appellant Salim Ahmed Hamdan’s Principal Brief filed on November 15, 2011, and is hereby incorporated by reference. DATED: March 8, 2012 By: /s/ Charles C. Sipos One of the attorneys for Salim Ahmed Hamdan -i- USCA Case #11-1257 Document #1362775 Filed: 03/08/2012 Page 3 of 65 TABLE OF CONTENTS Page CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES.........................................................................................................i TABLE OF AUTHORITIES..................................................................... iv GLOSSARY OF TERMS .......................................................................... xi SUMMARY OF ARGUMENT ................................................................... 1 ARGUMENT.............................................................................................. 3 I. MST Is Not Triable by Military Commission ........................ 3 A. There Is No “U.S. Common Law of War”...................... 5 1. A “U.S. common law of war” is barred by United States v. Hudson....................................... 5 2. Neither the federal courts nor the United States military recognize a “U.S. common law of war” ............................................................ 7 B. Congress’s General War Powers Do Not Authorize It to Punish a “U.S. Common Law War Crime”........................................................................... 10 1. The Define and Punish Clause, not Congress’s general war powers, determines the scope of military commission jurisdiction over war crimes............................... 11 2. The Government’s historical evidence does not establish that MST is a common law war crime ............................................................ 14 3. The doctrine of a “U.S. common law of war,” if accepted, would violate the separation of powers between Article I and Article III courts................................................................... 17 -ii- USCA Case #11-1257 Document #1362775 Filed: 03/08/2012 Page 4 of 65 TABLE OF CONTENTS (continued) Page C. Punishing MST by Military Commission Is Not “Necessary and Proper” to Comply with Obligations Under International Law ........................ 21 II. Hamdan’s Conviction Violated the Ex Post Facto Principle................................................................................. 25 A. The Ex Post Facto Clause Applies and Must Be Enforced........................................................................ 25 B. The Government’s Suggestion That the Ex Post Facto Principle Does Not Fully Apply Should Be Rejected ........................................................................ 25 C. The Government Fails to Support Its Expansive Definition of the Offense or Its Claim That Such Conduct Has Long Been Condemned as a Crime....... 31 D. Petitioner Did Not Have Fair Notice Under Any Authority Cited by the Government ........................... 36 1. International Law............................................... 36 2. U.S. Common Law and Domestic MST Statute................................................................. 39 III. Hamdan’s Military Commission Violated Equal Protection .............................................................................. 43 A. Application of Equal Protection to Criminal Trials at Guantanamo Is Not “Impracticable or Anomalous” .................................................................. 43 B. The Government’s Reliance on Immigration and Fourth Amendment Cases to Support Its “Rational Basis” Argument Is Misplaced ................... 45 C. The MCA Cannot Survive Strict Scrutiny.................. 49 CONCLUSION ........................................................................................ 50 -iii- USCA Case #11-1257 Document #1362775 Filed: 03/08/2012 Page 5 of 65 TABLE OF AUTHORITIES* Page FEDERAL CASES Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010)........................................................45, 50 Al-Madhwani v. Obama, 642 F.3d 1071 (D.C. Cir. 2011)......................................................44, 45 Bouie v. City of Columbia, 378 U.S. 347 (1964)..............................................................................28 *Boumediene v. Bush, 553 U.S. 723 (2008).............................................................. 3, 43, 44, 45 Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) .............................................................29, 30 Clark v. Jeter, 486 U.S. 456 (1988)..............................................................................45 Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986)..............................................................................20 Ex parte Milligan, 71 U.S. 2 (1866)....................................................................................16 *Ex parte Quirin, 317 U.S. 1 (1942)............................................................ 8, 12, 13, 15, 36 Ex parte Vallandigham, 68 U.S. 243 (1863)..................................................................................8 Fiallo v. Bell, 430 U.S. 787 (1977)..............................................................................48 * Authorities upon which we chiefly rely are marked with asterisks. -iv- USCA Case #11-1257 Document #1362775 Filed: 03/08/2012 Page 6 of 65 TABLE OF AUTHORITIES (continued) Page Ford v. Surget, 97 U.S. 594 (1878)..................................................................................8 Graham v. Richardson, 403 U.S. 365 (1971)..............................................................................46 Griffin v. Illinois, 351 U.S. 12 (1956)................................................................................45 *Hamdan v. Rumsfeld, 548 U.S. 557 (2006).................................. 7, 8, 12, 15, 16, 30, 34, 37, 40 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)..............................................................................50 *In re Yamashita, 327 U.S. 1 (1946)................................................................ 12, 13, 15, 36 Johnson v. Eisentrager, 339 U.S. 763 (1950).................................................................. 44, 45, 50 Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009)......................................................44, 45 Luther v. Borden, 48 U.S. 1 (1840)......................................................................................8 M’Culloch v. Maryland, 17 U.S. 316 (1819)................................................................................22 Madsen v. Kinsella, 343 U.S. 341 (1952)..........................................................................8, 16 Marks v. United States, 430 U.S. 188 (1977)..............................................................................29 -v- USCA Case #11-1257 Document #1362775 Filed: 03/08/2012 Page 7 of 65 TABLE OF AUTHORITIES (continued) Page Mathews v. Diaz, 426 U.S. 67 (1976)................................................................................49 Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979)..............................................................48 Peretz v. United States, 501 U.S. 923 (1991)..............................................................................20 Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009)........................................................44, 45 Reid v. Covert, 354 U.S. 1 (1957)............................................................................23, 24 *Rogers v. Tennessee, 532 U.S. 451 (2001)................................................ 25, 26, 27, 28, 29, 41 Schneckloth v. Bustamonte, 412 U.S. 218 (1973)..............................................................................48 The Amy Warwick, 67 U.S. 635 (1862) ......................................................8 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)..........................................................................24, 25 United States v. Comstock, ___ U.S. __, 130 S. Ct. 1949 (2010)......................................................22 United States v. Curtis, 32 M.J. 252 (C.M.A. 1991) .....................................................................9 United States v. Duggan, 743 F.2d 59 (2d Cir. 1984) .............................................................46, 47 -vi- USCA Case #11-1257 Document #1362775 Filed: 03/08/2012 Page 8 of 65 TABLE OF AUTHORITIES (continued) Page United States v. Ferreira, 275 F.3d 1020 (11th Cir. 2001)............................................................48
Load more

Recommended publications
  • Government Turns the Other Way As Judges Make Findings About Torture and Other Abuse
    USA SEE NO EVIL GOVERNMENT TURNS THE OTHER WAY AS JUDGES MAKE FINDINGS ABOUT TORTURE AND OTHER ABUSE Amnesty International Publications First published in February 2011 by Amnesty International Publications International Secretariat Peter Benenson House 1 Easton Street London WC1X 0DW United Kingdom www.amnesty.org Copyright Amnesty International Publications 2011 Index: AMR 51/005/2011 Original Language: English Printed by Amnesty International, International Secretariat, United Kingdom All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publishers. Amnesty International is a global movement of 2.2 million people in more than 150 countries and territories, who campaign on human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments. We research, campaign, advocate and mobilize to end abuses of human rights. Amnesty International is independent of any government, political ideology, economic interest or religion. Our work is largely financed by contributions from our membership and donations CONTENTS Introduction ................................................................................................................. 1 Judges point to human rights violations, executive turns away ........................................... 4 Absence
    [Show full text]
  • The Oath a Film by Laura Poitras
    The Oath A film by Laura Poitras POV www.pbs.org/pov DISCUSSION GUIDe The Oath POV Letter frOm the fiLmmakers New YorK , 2010 I was first interested in making a film about Guantanamo in 2003, when I was also beginning a film about the war in Iraq. I never imagined Guantanamo would still be open when I finished that film, but sadly it was — and still is today. originally, my idea for the Oath was to make a film about some - one released from Guantanamo and returning home. In May 2007, I traveled to Yemen looking to find that story and that’s when I met Abu Jandal, osama bin Laden’s former bodyguard, driving a taxicab in Sana’a, the capital of Yemen. I wasn’t look - ing to make a film about Al-Qaeda, but that changed when I met Abu Jandal. Themes of betrayal, guilt, loyalty, family and absence are not typically things that come to mind when we imagine a film about Al-Qaeda and Guantanamo. Despite the dangers of telling this story, it compelled me. Born in Saudi Arabia of Yemeni parents, Abu Jandal left home in 1993 to fight jihad in Bosnia. In 1996 he recruited Salim Ham - dan to join him for jihad in Tajikistan. while traveling through Laura Poitras, filmmaker of the Oath . Afghanistan, they were recruited by osama bin Laden. Abu Jan - Photo by Khalid Al Mahdi dal became bin Laden's personal bodyguard and “emir of Hos - pitality.” Salim Hamdan became bin Laden’s driver. Abu Jandal ends up driving a taxi and Hamdan ends up at Guantanamo.
    [Show full text]
  • Prosecuting a Pre-9/11 Terrorist: the Legal Limits of Military Commissions
    PROSECUTING A PRE-9/11 TERRORIST: THE LEGAL LIMITS OF MILITARY COMMISSIONS DEBORAH PEARLSTEIN* It is an interesting moment to step back and assess how the mil- itary commission trials have progressed in the thirteen years since the trials were originally conceived by presidential order in 2001.1 I had the privilege of being among the first group of human rights monitors to visit Guantanamo Bay in 2004 to witness the opening hearings of an earlier generation of military commission trials, and I have watched the trials closely since then.2 Military commissions in their various forms have had multi- ple trips to the federal courts, including a trip to the Supreme Court in 2006.3 They have been the subject of two major pieces of federal legislation—the Military Commissions Act of 2006, and the Military Commissions Act of 2009, which have sub- stantially revised the rules surrounding commission proceed- ings.4 Today, the commissions boast a truly distinguished chief prosecutor in General Mark Martins, who is an extraordinary lawyer, among other things. In many respects, the commissions are vastly fairer procedurally than they were when they were conceived in 2001 and 2002.5 Yet the central problem remains: The legal complexity of pursu- ing a novel system of military commission trials, or war crimes * Associate Professor of Law, Cardozo Law School, Yeshiva University. This essay was adapted from remarks given at the 2014 Federalist Society Annual Stu- dent Symposium at the University of Florida in Gainesville, Florida. 1. See Military Order of November 13, 2001, Detention, Treatment, and Trial of Cer- tain Non-Citizens in the War Against Terrorism, 66 Fed.
    [Show full text]
  • True and False Confessions: the Efficacy of Torture and Brutal
    Chapter 7 True and False Confessions The Efficacy of Torture and Brutal Interrogations Central to the debate on the use of “enhanced” interrogation techniques is the question of whether those techniques are effective in gaining intelligence. If the techniques are the only way to get actionable intelligence that prevents terrorist attacks, their use presents a moral dilemma for some. On the other hand, if brutality does not produce useful intelligence — that is, it is not better at getting information than other methods — the debate is moot. This chapter focuses on the effectiveness of the CIA’s enhanced interrogation technique program. There are far fewer people who defend brutal interrogations by the military. Most of the military’s mistreatment of captives was not authorized in detail at high levels, and some was entirely unauthorized. Many military captives were either foot soldiers or were entirely innocent, and had no valuable intelligence to reveal. Many of the perpetrators of abuse in the military were young interrogators with limited training and experience, or were not interrogators at all. The officials who authorized the CIA’s interrogation program have consistently maintained that it produced useful intelligence, led to the capture of terrorist suspects, disrupted terrorist attacks, and saved American lives. Vice President Dick Cheney, in a 2009 speech, stated that the enhanced interrogation of captives “prevented the violent death of thousands, if not hundreds of thousands, of innocent people.” President George W. Bush similarly stated in his memoirs that “[t]he CIA interrogation program saved lives,” and “helped break up plots to attack military and diplomatic facilities abroad, Heathrow Airport and Canary Wharf in London, and multiple targets in the United States.” John Brennan, President Obama’s recent nominee for CIA director, said, of the CIA’s program in a televised interview in 2007, “[t]here [has] been a lot of information that has come out from these interrogation procedures.
    [Show full text]
  • The Current Detainee Population of Guantánamo: an Empirical Study
    © Reuters/HO Old – Detainees at XRay Camp in Guantanamo. The Current Detainee Population of Guantánamo: An Empirical Study Benjamin Wittes and Zaahira Wyne with Erin Miller, Julia Pilcer, and Georgina Druce December 16, 2008 The Current Detainee Population of Guantánamo: An Empiricial Study Table of Contents Executive Summary 1 Introduction 3 The Public Record about Guantánamo 4 Demographic Overview 6 Government Allegations 9 Detainee Statements 13 Conclusion 22 Note on Sources and Methods 23 About the Authors 28 Endnotes 29 Appendix I: Detainees at Guantánamo 46 Appendix II: Detainees Not at Guantánamo 66 Appendix III: Sample Habeas Records 89 Sample 1 90 Sample 2 93 Sample 3 96 The Current Detainee Population of Guantánamo: An Empiricial Study EXECUTIVE SUMMARY he following report represents an effort both to document and to describe in as much detail as the public record will permit the current detainee population in American T military custody at the Guantánamo Bay Naval Station in Cuba. Since the military brought the first detainees to Guantánamo in January 2002, the Pentagon has consistently refused to comprehensively identify those it holds. While it has, at various times, released information about individuals who have been detained at Guantánamo, it has always maintained ambiguity about the population of the facility at any given moment, declining even to specify precisely the number of detainees held at the base. We have sought to identify the detainee population using a variety of records, mostly from habeas corpus litigation, and we have sorted the current population into subgroups using both the government’s allegations against detainees and detainee statements about their own affiliations and conduct.
    [Show full text]
  • OMAR AHMED KHADR, ) Appellant, ) ) Case Nos
    Case 1:04-cv-01136-JDB Document 170-2 Filed 04/20/2007 Page 1 of 4 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ______________________________ ) OMAR AHMED KHADR, ) Appellant, ) ) Case Nos. 05-5064 (Lead) ) 05-5103 (Appellant) ) 05-5104 (Appellee) v. ) ) GEORGE W. BUSH, et al., ) Appellees. ) ______________________________) APPELLANT OMAR KHADR’S MOTION TO HOLD CASE IN ABEYANCE AND TO STAY ISSUANCE OF MANDATE PENDING SUPREME COURT DETERMINTION OF PETITION FOR WRIT OF CERTIORARI Appellant Omar Khadr respectfully requests that this Court hold his case in abeyance, specifically in regard to the Government’s Motion to Govern Further Proceedings, and withhold issuance of its mandate to dismiss, pending the outcome of Mr. Khadr’s Petition for Writ of Certiorari in the U.S. Supreme Court. Unlike the other habeas petitioners in Al Odah v. United States (No. 05-5064), whose petition for certiorari was denied on April 2, 2007, Mr. Khadr’s petition for certiorari is still pending before the Supreme Court. Holding his case in abeyance and issuing a stay is appropriate because if certiorari is granted, action in this Court or the district court may be unnecessary. The relief requested here is identical to that already granted by this Court to Mr. Khadr’s co-petitioner before the Supreme Court, Salim Hamdan, in Hamdan v. Rumsfeld (No. 07-5042). On March 5, 2007, Petitioners in Al Odah v. United States (No. 05-5064) filed a Petition for Writ of Certiorari, appealing this Court’s decision issued on February 20, 2007. Mr. Khadr, although a litigant in that case, declined to join the Al Odah petition.
    [Show full text]
  • Returns from Guantanamo to Yemen WATCH
    United States/Yemen HUMAN No Direction Home RIGHTS Returns from Guantanamo to Yemen WATCH No Direction Home Returns from Guantanamo to Yemen Copyright © 2009 Human Rights Watch All rights reserved. Printed in the United States of America ISBN: 1-56432-466-4 Cover design by Rafael Jimenez Human Rights Watch 350 Fifth Avenue, 34th floor New York, NY 10118-3299 USA Tel: +1 212 290 4700, Fax: +1 212 736 1300 [email protected] Poststraße 4-5 10178 Berlin, Germany Tel: +49 30 2593 06-10, Fax: +49 30 2593 0629 [email protected] Avenue des Gaulois, 7 1040 Brussels, Belgium Tel: + 32 (2) 732 2009, Fax: + 32 (2) 732 0471 [email protected] 64-66 Rue de Lausanne 1202 Geneva, Switzerland Tel: +41 22 738 0481, Fax: +41 22 738 1791 [email protected] 2-12 Pentonville Road, 2nd Floor London N1 9HF, UK Tel: +44 20 7713 1995, Fax: +44 20 7713 1800 [email protected] 27 Rue de Lisbonne 75008 Paris, France Tel: +33 (1)43 59 55 35, Fax: +33 (1) 43 59 55 22 [email protected] 1630 Connecticut Avenue, N.W., Suite 500 Washington, DC 20009 USA Tel: +1 202 612 4321, Fax: +1 202 612 4333 [email protected] Web Site Address: http://www.hrw.org March 2009 1-56432-466-4 No Direction Home Returns from Guantanamo to Yemen Summary ........................................................................................................................................... 1 Recommendations ............................................................................................................................ 6 To the Government of the United States ...................................................................................... 6 To the Government of Yemen ...................................................................................................... 6 To the League of Arab States, Member States of the European Union, and United Nations Specialized Programs .................................................................................................................
    [Show full text]
  • The Constitutional and Political Clash Over Detainees and the Closure of Guantanamo
    UNIVERSITY OF PITTSBURGH LAW REVIEW Vol. 74 ● Winter 2012 PRISONERS OF CONGRESS: THE CONSTITUTIONAL AND POLITICAL CLASH OVER DETAINEES AND THE CLOSURE OF GUANTANAMO David J.R. Frakt ISSN 0041-9915 (print) 1942-8405 (online) ● DOI 10.5195/lawreview.2012.195 http://lawreview.law.pitt.edu This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. This site is published by the University Library System of the University of Pittsburgh as part of its D- Scribe Digital Publishing Program and is cosponsored by the University of Pittsburgh Press. PRISONERS OF CONGRESS: THE CONSTITUTIONAL AND POLITICAL CLASH OVER DETAINEES AND THE CLOSURE OF GUANTANAMO David J.R. Frakt Table of Contents Prologue ............................................................................................................... 181 I. Introduction ................................................................................................. 183 A. A Brief Constitutional History of Guantanamo ................................... 183 1. The Bush Years (January 2002 to January 2009) ....................... 183 2. The Obama Years (January 2009 to the Present) ........................ 192 a. 2009 ................................................................................... 192 b. 2010 to the Present ............................................................. 199 II. Legislative Restrictions and Their Impact ................................................... 205 A. Restrictions on Transfer and/or Release
    [Show full text]
  • AI Media Briefing Guantanamo Anniversary
    AMNESTY INTERNATIONAL MEDIA BRIEFING DECEMBER 2011 Guantánamo 10th anniversary: Timeline 2001 11 September – Nearly 3,000 people are killed when four hijacked planes are crashed into the World Trade Center in New York, the Pentagon, and a field in Pennsylvania. Amnesty International considers the attacks to constitute a crime against humanity. 14 September – US Congress passes a resolution, Authorization for Use of Military Force (AUMF), giving the President unprecedented authorization to use force against "nations, organizations and individuals" whom he determined were connected in any way with the attacks or with future acts of international terrorism. 17 September – US President George W Bush signs a memorandum authorizing the CIA to set up detention facilities outside the USA and containing specific information relating to the sources and methods by which the CIA was to implement this detention programme. This memorandum remains classified. 18 September – President Bush signs the AUMF into law. 7 October – The USA leads military action against the Taleban government and members of al- Qa’ida in Afghanistan. 13 November – President Bush issues a military order on the "Detention, Treatment and Trial of Certain Non-Citizens, in the War Against Terrorism", ordering the Secretary of Defense to find an “appropriate location” to hold non-US nationals in indefinite custody without charge. The order seeks to prohibit any detainee held under it from seeking any remedy in any proceeding in any US, foreign or international court. If any detainee were to be tried, the trial would be by military commission – a body created by the executive, not an independent or impartial ordinary court.
    [Show full text]
  • Military Commissions: a Place Outside the Law’S Reach
    MILITARY COMMISSIONS: A PLACE OUTSIDE THE LAW’S REACH JANET COOPER ALEXANDER* “We have turned our backs on the law and created what we believed was a place outside the law’s reach.” Colonel Morris D. Davis, former chief prosecutor of the Guantánamo military commissions1 Ten years after 9/11, it is hard to remember that the decision to treat the attacks as the trigger for taking the country to a state of war was not inevitable. Previous acts of terrorism had been investigated and prosecuted as crimes, even when they were carried out or planned by al Qaeda.2 But on September 12, 2001, President Bush pronounced the attacks “acts of war,”3 and he repeatedly defined himself as a “war president.”4 The war * Frederick I. Richman Professor of Law, Stanford Law School. I would like to thank participants at the 2011 Childress Lecture at Saint Louis University School of Law and a Stanford Law School faculty workshop for their comments, and Nicolas Martinez for invaluable research assistance. 1 Ed Vulliamy, Ten Years On, Former Chief Prosecutor at Guantanamo Slams ‘Camp of Torture,’ OBSERVER, Oct. 30, 2011, at 29. 2 Previous al Qaeda attacks that were prosecuted as crimes include the 1993 bombing of the World Trade Center, the Manila Air (or Bojinka) plot to blow up a dozen jumbo jets, and the 1998 embassy bombings in East Africa. Mary Jo White, Prosecuting Terrorism in New York, MIDDLE E.Q., Spring 2001, at 11, 11–14; see also Christopher S. Wren, U.S. Jury Convicts 3 in a Conspiracy to Bomb Airliners, N.Y.
    [Show full text]
  • Recent Cases
    RECENT CASES EX POST FACTO CLAUSE — GUANTÁNAMO PROSECUTIONS — D.C. CIRCUIT INTERPRETS MILITARY COMMISSIONS ACT OF 2006 TO BAR RETROACTIVE APPLICATION OF MATERIAL SUP- PORT PROHIBITION. — Hamdan v. United States, 696 F. 3d 1238 (D.C. Cir. 2012). Since September 2001, the U.S. government has struggled to deal with captured individuals suspected of involvement in terrorism. The Bush Administration’s approach — to hold detainees as unlawful combatants at Guantánamo Bay, Cuba, and prosecute limited numbers in military commissions — engendered intense public debate and judi- cial scrutiny.1 However, attempts to prosecute suspected terrorists in military tribunals continue. Recently, in Hamdan v. United States2 (Hamdan II), the D.C. Circuit set back efforts to prosecute terrorism suspects for crimes that occurred before 2006. In a unanimous opin- ion, the court held that the prohibition on material support for terror- ism that was passed as part of the Military Commissions Act of 20063 (MCA) does not apply retroactively.4 In doing so, it properly employed ex post facto doctrine to disallow retroactive application of the MCA’s material support provision. Though Hamdan II could be read as a narrow statement on the correct understanding of the Ex Post Facto Clause, the court’s opinion illustrates important separation of powers concerns particular to cases involving the MCA. The presence of such concerns suggests that Hamdan II will have significant implications for future detainee prosecutions. In 1996, Yemeni citizen Salim Hamdan began working for al Qaeda.5 After attending an al Qaeda training camp in Afghanistan, Hamdan became a driver transporting weapons and supplies for use by terrorist operatives.6 Hamdan soon encountered Osama bin Laden and became bin Laden’s personal driver and bodyguard, a position he held for about five years.7 Hamdan was aware during this period that al Qaeda targeted Americans for terrorist strikes.8 Hamdan continued ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See, e.g., Boumediene v.
    [Show full text]
  • Guantánamo and Its Aftermath
    Guantánamo and Its Aftermath u.s. detention and interrogation practices and their impact on former detainees November 2008 Human Rights Center International Human Rights Law Clinic In partnership with University of California, Berkeley University of California, Berkeley Center for Constitutional Rights Guantánamo and Its Aftermath u.s. detention and interrogation practices and their impact on former detainees Laurel E. Fletcher Eric Stover with Stephen Paul Smith Alexa Koenig Zulaikha Aziz Alexis Kelly Sarah Staveteig Nobuko Mizoguchi November 2008 Human Rights Center University of California, Berkeley International Human Rights Law Clinic University of California, Berkeley, School of Law In partnership with Center for Constitutional Rights ISBN# 978-0-9760677-3-3 Human Rights Center and International Human Rights Law Clinic, University of California, Berkeley Cover photos: Louie Palu/ZUMA Design: Melanie Doherty Design, San Francisco Human Rights Center, University of California, Berkeley The Human Rights Center promotes human rights and international justice worldwide and trains the next generation of human rights researchers and advocates. We believe that sustainable peace and devel- opment can be achieved only through efforts to prevent human rights abuses and hold those responsible for such crimes accountable. We use empirical research methods to investigate and expose serious viola- tions of human rights and international humanitarian law. In our studies and reports, we recommend specific policy measures that should be taken by governments and international organizations to protect vulnerable populations in times of war and political and social upheaval. For more information, please visit hrc.berkeley.edu. International Human Rights Law Clinic, University of California, Berkeley, School of Law The International Human Rights Law Clinic (IHRLC) designs and implements innovative human rights projects to advance the struggle for justice on behalf of individuals and marginalized communities through advocacy, research, and policy development.
    [Show full text]