Hastings International and Comparative Law Review Volume 36 Article 1 Number 1 Winter 2013 1-1-2013 Redemption Deferred: Military Commissions in the War on Terror and the Charge of Providing Material Support for Terrorism Dana M. Hollywood Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Dana M. Hollywood, Redemption Deferred: Military Commissions in the War on Terror and the Charge of Providing Material Support for Terrorism, 36 Hastings Int'l & Comp. L. Rev. 1 (2013). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol36/iss1/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Redemption Deferred: Military Commissions in the War on Terror and the Charge of Providing Material Support for Terrorism- By MAJOR DANA M. HOLLYWOOD" Table of Contents I. Introduction ........................................... 3 II. One Step Forward, Two Steps Back: ..................... 10 Military Commissions in the Global War on Terror .. ............ 10 A. The Bush Administration: A New Paradigm................... 10 1. The 2001 AUMF: A Blank Check? . ... ............ 10 2. A Precedent Worth Repeating? Quirin and President Bush's Military Order ................. 22 a. Historical Precedents ............. ......... 22 b. The Past is Present: Analysis of the President's Military Order..................... 27 3. Global Due Process: The Geneva Debate .... ...... 34 a. Unpacking "A Regularly Constituted Court" ......... 34 b. Application of the Geneva Conventions: A Difference Without Distinction .............. 43 4. By The Numbers: An Assessment .................... 55 * As this issue was going to the publisher, the U.S. Court of Appeals for the District of Columbia Circuit affirmed that Material Support for Terrorism is not an international-law war crime, as argued by the author in this article. See Hamdan v. United States, No. 11-1257, slip op. at 5-6 (D.C. Cir. Oct. 16, 2012). ** Judge Advocate, United States Army, serving as a Special Victim Prosecutor, Fort Polk, LA. LL.M. 2012, The Judge Advocate General's School, United States Army, Charlottesville, Virginia; J.D. 2006, William and Mary Law; M.A.L.D.,1999, the Fletcher School of Law and Diplomacy, Tufts University; B.A., 1992, Boston University. Member of the bars of Massachusetts, the Court of Appeals for the Armed Forces, and the Supreme Court of the United States. The views expressed in this article do not represent the views of the United States Army or the Department of Defense. I 2 Hastings Int'l & Comp. L. Rev. [Vol. 36:1 B. The Obama Administration: Change Proves Elusive.......... 60 1. A Bipartisanship Approach to Bifurcation?....... ...... 60 2. From Complementarity to Competiveness . ........ 61 3. By the Numbers: An Assessment ........ ........ 69 III. A Self-Inflicted Wound: .............................. 72 The Charge of Providing Material Support for Terrorism.............72 A. Origins of the Material Support Provisions: A Tale of Two Statutes ................................. 74 1. A Long and Winding Road ......................... 74 2. The "Watershed Legislative Development of Terrorist Financing Enforcement" .......... ........ 78 a. The Designation Process: "Terrorism Is Whatever the Secretary of State Decides It Is"......79 b. Is Immaterial Material? .......... 82 c. Expressive Association and Personal Guilt.......... 85 B. Developments in the Material Support Provisions: Holder v. HLP .................................. 87 C. A Crime by Any Other Name: MST as a Law of War Violation..................................... 92 1. Courts of Limited Jurisdiction .................. 93 2. Does Saying So Make It So: The Define and Punish Clause ............................. 97 3. A Deferential CMCR Creates a New War Crime..........99 a. International Conventions and Declarations.........101 b. International Criminal Tribunals............ ..... 102 c. Non-United States Domestic Terrorism Laws.......105 d. Historical Precedent for Wrongfully Providing Aid to the Enemy. ................. ...... 105 IV. Conclusions ....................... ............... 108 2012] Military Commissions and the Charge of Material Support for Terror 3 I. Introduction In commemoration of the tenth anniversary of 9/11, syndicated, conservative columnist George F. Will wrote a perspicacious piece entitled Sept. 1I's Self-Inflicted Wounds. Mr. Will's editorial compares American responses to the tenth anniversary of Pearl Harbor with those of 9/11. Although Pearl Harbor heralded America's entry into an inescapable war that would ultimately cost the lives of more than 400,000 citizens,' the nation, recounted Mr. Will, met that solemn ten-year anniversary with little fanfare. As he wrote, "On Dec. 8, 1951, the day after the 10th anniversary of Pearl Harbor, the New York Times' front page made a one-paragraph mention of commemorations the day before, when the paper's page had not mentioned the anniversary." 2 Mr. Will further asserted: The most interesting question is not how America in 2011 is unlike America in 2001 but how it is unlike what it was in 1951. The intensity of today's focus on the 10th anniversary of Sept. 11 testifies to more than the multiplication of media ravenous for content, and to more than today's unhistorical and self- dramatizing tendency to think that eruptions of evil are violations of a natural entitlement to happiness. It also represents the search for refuge from a decade defined by unsatisfactory responses to Sept. 11.3 Although not addressed by Mr. Will, the decision to try suspected terrorists associated with 9/11 by military commissions has arguably been the most unsatisfactory response to the war on terror to date. In a combative memoir published five years after 9/11, John Yoo, "the key architect for the Bush administration's legal response to the terrorist threat," 4 writes that "[m]ilitary commissions have been the Bush administration's most conspicuous policy failure in the war against al Qaeda." 5 Indeed, the numbers 1. See, e.g., ANNE LELAND, CONG. RESEARCH SERV., RL 32492, AMERICAN WAR AND MILITARY OPERATIONS CASUALTIES: LISTS AND STATISTICS 2 (2010) (calculating that 405,399 U.S. military personnel died during service in World War II). 2. George F. Will, Sept. 1I's Self-Inflicted Wounds, WASH. POST, Sept. 9, 2011, at A15. 3. Id. 4. Michiko Kakutani, What Torture Is and Isn't: A Hard-Liner's Argument, N.Y. TIMES, Oct. 31, 2006, at El. 5. JOHN Yoo, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR 208 (2006). 4 Hastings Int'l & Comp. L. Rev. [Vol. 36:1 alone support that supposition. Since President Bush decreed that suspected 9/11 terrorists would be tried by military commissions on November 13, 2001, until he left office on January 20, 2008, military comnuissions convicted three individuals - two of whom are no longer in custody. 6 The Obama Administration's bifurcated approach to Article III courts and military commissions has been similarly ineffectual. Following dissemination of the Guantinamo Review Task Force report mandated by Executive Order (E.O.) 13,492 in the spring of 2010,7 four detainees have pled guilty under the revised Military Commissions Act (MCA) of 2009 since commissions were restarted in the spring of 2010.8 The paucity of convictions can be attributed primarily to the lack of an existing legal precedent. Although American use of military commissions predates the founding of the United States, 9 the last employment of military commissions was Franklin Delano Roosevelt's (FDR) decision to try eight Nazi saboteurs in 1942.10 That model - heavily relied upon by the Bush Administration - has routinely been criticized as "a precedent not worth repeating.""l 6. See infra Part II.A.4. 7. Although the joint interagency task force completed its report in January 2010, the Washington Post reported the Administration chose not to send it to select committees on Capitol Hill until late-May 2009 due to the attempted bombing of Northwest Airlines Flight 253 on Christmas Day, 2009. See, e.g., Peter Finn, Most Guantanamo Detainees Low-Level Fighters, Task Force Report Says, WASH. POST, May 29, 2010, at A03 (noting that "there was little public or congressional appetite for further discussion of its plan to close the military detention center"). 8. See infra Part II.B.3. 9. For an historical overview of the use of military commissions in American history, see Louis FISHER, MILITARY TRIBUNALS & PRESIDENTIAL POWER: AMERICAN REVOLUTION TO THE WAR ON TERROR (2005) [hereinafter FISHER, TRIBUNALS]. See also MAJ Michael 0. Lacey, Military Commissions: A Historical Survey, THE ARMY LAW 41 (Mar. 2002). 10. For an excellent overview of Ex Parte Quirin, see Louis FISHER, NAZI SABOTEURS ON TRIAL: A MILITARY TRIBUNAL AND AMERICAN LAW 161 (2d ed. 2005) [hereinafter FISHER, SABOTEURS]; PIERCE O'DONNELL, IN TIME OF WAR: HITLER'S TERRORIST ATTACK ON AMERICA (2005); MICHAEL DOBBS, SABOTEURS: THE NAZI RAID ON AMERICA (2004). 11. Louis Fisher, Military Commissions: Problems of Authority and Practice, 24 B.U. INT'L L. J. 15, 16 (2006) ("A close look at Quirin reveals a process and