Ex Post Facto Clause - Guantanamo Prosecutions - D.C. Circuit Interprets Military Commissions Act of 2006 to Bar Retroactive Application of Material Support Prohibition

Harvard Law Review, April 2013 | Go to article overview

Ex Post Facto Clause - Guantanamo Prosecutions - D.C. Circuit Interprets Military Commissions Act of 2006 to Bar Retroactive Application of Material Support Prohibition


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 Guantanamo Bay, Cuba, and prosecute limited numbers in military commissions--engendered intense public debate and judicial scrutiny. (1) However, attempts to prosecute suspected terrorists in military tribunals continue. Recently, in Hamdan v. United States (2) (Hamdan II), the D.C. Circuit set back efforts to prosecute terrorism suspects for crimes that occurred before 2006. In a unanimous opinion, the court held that the prohibition on material support for terrorism that was passed as part of the Military Commissions Act of 2006 (3) (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 to work for al Qaeda until November 2001, when he was captured in Afghanistan and turned over to U.S. authorities. (9)

Following his capture, Hamdan was taken to Guantanamo Bay, Cuba, held as an unlawful enemy combatant, and charged before a military commission with one count of conspiracy. (10) Hamdan challenged the legitimacy of his proceedings and in 2006, in Hamdan v. Rumsfeld (11) (Hamdan I), the Supreme Court found that Hamdan's prosecution violated Article 36 of the Uniform Code of Military Justice and other provisions. (12) Four Justices agreed that 10 U.S.C. [section] 821, a statute that authorized prosecutions of violations of the "law of war" before 2006, did not authorize Hamdan's prosecution. (13) In response to the Court's ruling in Hamdan I, Congress passed the 2006 MCA. (14) In addition to addressing the procedural flaws identified by the Hamdan I Court, Congress elaborated on the crimes triable by military commission. (15) While 10 U.S.C. [section] 821 provides only for prosecutions under the "law of war," without defining that term, the MCA enumerates a number of law-of-war crimes triable by military commission, including conspiracy, terrorism, and material support for terrorism. (16) The statute notes that these crimes are "declarative of existing law," and thus may apply to conduct that occurred before the statute's enactment. (17) Following enactment of the MCA, Hamdan was charged with and convicted of material support for terrorism. (18) Hamdan was credited for time served, transferred to Yemen in 2008, and then released in early 2009. (19)

Despite his release, Hamdan appealed his conviction to the en banc U.S. Court of Military Commission Review (the Commission). (20) In a per curiam opinion, the Commission unanimously affirmed Hamdan's conviction. (21) Rejecting Hamdan's argument that Congress lacked authority under Article I of the Constitution to criminalize material support for terrorism, (22) the Commission first found that Congress's enumeration of the material support crime fell within its Article I authority to define and punish law -of-war violations. (23) The Commission held that Hamdan's actions were "well-recognized" law-of-war violations when he performed them, (24) meaning that Hamdan's conviction under the MCA did not violate the Constitution's Ex Post Facto Clause because 10 U.

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