War Criminal or Just Plain Felon? Whether Providing Material Support for Terrorism Violates the Laws of War and Is Thus Punishable by Military Commission

• Publication year: 2010

Georgia State University Law Review

Volume 26 j 9

Issue 3 Spring 2010

3-21-2012

War Criminal or Just Plain Felon? Whether Providing Material Support for Terrorism Violates the Laws ofWar and is Thus Punishable By Military Commission

T. Jack Morse

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Recommended Citation

Morse, T. Jack (2009) "War Criminal or Just Plain Felon? Whether Providing Material Support for Terrorism Violates the Laws ofWar and is Thus Punishable By Military Commission," Georgia State University Law Review: Vol. 26: Iss. 3, Article 9. Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss3/9

This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.

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WAR CRIMINAL OR JUST PLAIN FELON? WHETHER PROVIDING MATERIAL SUPPORT FOR TERRORISM VIOLATES THE LAWS OF WAR AND IS THUS PUNISHABLE BY MILITARY COMMISSION

T. Jack Morse*

Introduction

On a winter day in Kandahar, Afghanistan, around February of 1996, a young Yemeni national named Salim Ahmed Hamdan, in his mid-twenties at the time, entered the employment of an Islamic jihadist by the name of Usama bin Laden.¹ For the next five years, Hamdan, who had never progressed past the fourth grade in school,² would serve as bin Laden's driver, transporting him in a Toyota pickup truck to various destinations within Afghanistan.³ Occasionally, it seems, he also transported weapons,⁴ and from time to time Hamdan served as one of bin Laden's body guards as well.⁵ In return for his services, Hamdan earned approximately $200 a month.⁶ He did not join al Qaeda, bin Laden's terrorist organization, nor did he join the

J.D. 2010, Georgia State University College of Law.

1. Charge Sheet at 5, United States v. Hamdan, Office of Military Commissions (Apr. 5, 2007), available at http://www.defenselink.mil/news/May2007/Hamdan_Charges.pdf; Lucile Malandain, First War Crimes Trial Since WWII to Begin at Guantanamo, sydney morning herald, July 21, 2008, http://news.snm.com.au/world/firet-waMrimes-triaU

3ija.html.

2. Jerry Markon & Josh White, Bin Laden Driver Gets 5 1/2 Years; U.S. Sought 30, wash. post, Aug. 7, 2008, at A01; Sahr MuhammedAlly, The Hamdan War Crimes Trial: An Illusion of Justice, Huffdmgton Post, Aug. 6, 2008, http://www.huffingtonpost.conVsahr-muhammedaIly/the-hamdan-war-crimes-tri_b_l 17325.html.

3. Charge Sheet, supra note 1, at 5; William Glaberson, Panel Convicts Bin Laden Driver in Split Verdict, N.Y. times, Aug. 7, 2008, at Al [hereinafter Glaberson, Panel Convicts]; Profile: Salim Hamdan, BBC News, Aug. 6,2008, http://news.bbc.co.Uk/2/hi/americas/7546107.stm.

4. Charge Sheet, supra note 1, at 5.

5. Id.; Suzanne Goldenberg, US Military Convicts Man Who Drove Bin Laden of Supporting Terrorism, irish times, Aug. 8, 2008, available at 2008 WLNR 14713341.

6. Goldenberg, supra note 5, at 12; Reuters, Bin Laden Driver Jailed for Supporting Terrorism, Irish Times, Aug. 8, 2008, http://ww.irishtimes.corn/newspaper^reakmg/2008/0807/breaking6.htm; Profile: Salim Hamdan, supra note 3.

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Afghan military force known as the Taliban. Neither did Hamdan

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participate in belligerent acts toward the United States or its allies.

In November 2001, however, Hamdan's employment abruptly ended when Afghan militia forces detained him at a road block and hastily handed him over to the United States military.⁹ Hamdan had no passengers with him,¹⁰ was not engaged in any hostilities,¹¹ and offered no resistance.¹² Nevertheless, early in the summer of 2002, the military deposited Hamdan at the United States Naval Base in Guantanamo Bay, Cuba. He left a wife and two daughters in Afghanistan.¹⁴ Nearly five years later, after a number of related legal battles regarding issues such as habeas corpus and the legitimacy of United States military commissions,¹⁵ the United States government, on May 10, 2007, charged Hamdan with providing material support for terrorism in violation of 10 U.S.C. § 950v(b)(25) and conspiracy to commit various terrorist acts in violation of 10 U.S.C. § 950v(b)(28).¹⁶ Both offenses fall under the 2006 Military Commissions Act (MCA), which Congress passed "[t]o authorize trial by military commission for violations of the law of war."¹⁷ The MCA was later augmented by the Manual for Military Commissions,

7. Defense Motion to Dismiss for Lack of Personal Jurisdiction at 1-3, United States v. Hamdan (Oct. 1,2004), available at http-7/www.defenselink.miynews/Oca004/c\200410071ack.pdf.

8. Id. at 1.

9. Hamdan v. Rumsfeld, 548 U.S. 557, 566 (2006); William Glaberson, Lawyer Suggests Detainee Aided U.S. in Afghanistan, N.Y. times, Aug. 7, 2008, at A12; Human Rights First, The Case of Salim Ahmed Hamdan, http://www.humarirightsfirst.org/us_law/inthecourts/supreme_court_hamdan.htm (last visited Apr. 18, 2010); Profile: Salim Hamdan, supra note 3.

10. Defense Motion to Dismiss for Lack of Personal Jurisdiction, supra note 7, at 3.

11. See On Reconsideration Ruling on Motion to Dismiss for Lack of Jurisdiction at 4, United States v. Hamdan (Dec. 19, 2007), available at http://www.defenselink.mil/news/Dec2007/Hamdan-Jurisdiction%20After%20Reconsideration%20Ruling.pdf.

12. See id.

13. Hamdan, 548 U.S. at 566; Human Rights First, supra note 9; Profile: Salim Hamdan, supra note

3.

14. Profile: Salim Hamdan, supra note 3.

15. Boumediene v. Bush, 128 S. Ct. 2229, 2262 (2008); Hamdan, 548 U.S. at 595; Malandain, supra note 1.

16. Charge Sheet, supra note 1, at 3-4; Human Rights First, supra note 9.

17. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, 2600 (2006); see Sean Riordan, Military Commissions in America? Domestic Liberty Implications of the Military Commissions Act of2006, 23 touro L. rev. 575, 602 (2007); see also David Weissbrodt, Fair Trials? The Manual for Military Commissions in Light of Common Article 3 and Other International Law, 26 law & ineq. 353,353 (2008).

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published in January of 2007, to govern the commission proceedings.¹⁸

In August 2008, a military commission established for the express purpose of trying Hamdan acquitted him of the conspiracy charge but convicted him of providing material support for terrorism.¹⁹ Hamdan, deemed an "unlawful enemy combatant" by a separate tribunal in 2007,²⁰ was the first²¹ unlawful enemy combatant captured in the United States' "war on terror" to face a trial since 2001, when the Guantanamo Bay prison opened. The trial was also the United States' first war crimes tribunal since World War II.²³ Another aspect of the proceedings distinguished the trial, as well: unlike previous defendants prosecuted for providing material support under United States domestic law, the government convicted Hamdan of providing

18. U.S. Dep't of Defense, Manual for Military Commissions II-l (2007), available at http://www.defenselirik.raiI/pubs/pdfs/The%2

brodt, supra note 17, at 378 (noting that the Manual for Military Commissions establishes guidelines for trials of "unlawful enemy combatants" detained at Guantanamo Bay, Cuba and at other detention sites operated by the United States).

19. Glaberson, Panel Convicts, supra note 3; Markon & White, supra note 2; Hamdan Sentenced by Military Commission, Amnesty Int'l, Aug. 8, 2008, http://www.amnesty.org/en/news-and-updates/news/hamdan-sentenced-military-commission-20080808. Information regarding certain aspects of the trial is not allowed to be published, released or disclosed, and the court's opinion has not been made public. See Observing Guantdnamo's Military Commission Hearings (Part 2), amnesty IlMT'l, Aug. 6, 2008, http://www.amnesty.org/en/news-and-updates/observing-guantanamos-military-commission-hearings-part-2-20080806.

20. Human Rights First, supra note 9; see Weissbrodt, supra note 17, at 378 (noting that the Combatant Status Review Tribunal process determines unlawful enemy combatant status).

21. The United States government indicted Australian national David Hicks for providing material support for terrorism in March of 2007; Hicks was the first suspected terrorist to face prosecution under the Manual for Military Commissions, enacted in January of 2007, in accordance with the Military Commissions Act. Daniel Graeber, Australian David Hicks Charged with War Crimes, foreign pol'y Ass'n, Mar. 7, 2007, http://warcrimes.foreignpolicyblogs.com/2007/03/07/australian-david-hicks-charged-with-war-crimes. However, Hicks pleaded guilty at a hearing before his military commission began. Malandain, supra note 1. The United States held him for five years without trial before he confessed that he provided material support for terrorism. Id. The admission was part of an agreement that allowed him to return to Australia, where he served the rest of his sentence. Id.

22. Malandain, supra note 1.

23. Neil A. Lewis, First War-Crimes Case Opens at Guantanamo Base, N.Y. times, Aug. 25, 2004, at A14; Markon & White, supra note 2; Eric Umansky, Was Hamdan's Chauffeuring Really a War Crime?, ProPublica, Aug. 7, 2008, http://www.propublica.org/article/was-hamdans-chauffeuring-really-a- war-crime-807.

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material support for terrorism as a war crime,²⁴ thus allegedly making him eligible for trial by military commission.

However, one may have difficulty finding material support of terrorism—or material support for any other crime—categorized as a war crime outside the United States,²⁶ and, arguably, providing material support for terrorism was not considered a war crime within the United States until the passage of the MCA in 2006.²⁷ The United States has had the legal authority to punish aiders and abettors of domestic offenses for years and...