Hamdan Appeals Brief Filed

Salim Hamdan has filed his initial brief in the D.C. Circuit, appealing his military commission conviction and the Court of Military Commission Review opinion affirming it. He raises the following issues for review:

1. Whether the CMCR erred in holding that MST, as defined in the Military Commission Act of 2006 (“MCA”) and the January 2007 Manual for Military Commissions (“MMC”), was a cognizable offense against the law of war and therefore within the subject matter jurisdiction of the military commission that convicted Hamdan of that offense. 2. Whether the CMCR erred in holding that MST was a cognizable offense against the law of war during the time of the conduct that formed the basis for Hamdan’s conviction, such that his conviction did not violate the Ex Post Facto Clause of the U.S. Constitution. 3. Whether the CMCR erred in holding that the MCA, which established the criminal procedures that applied to Hamdan’s military commission and on its face applies only to aliens and not citizens, does not violate the Equal Protection Clause of the U.S. Constitution.

The summary of argument reads:

Hamdan’s conviction for “Providing Material Support for Terrorism” in violation of 10 U.S.C. § 950v(b)(25) should be vacated because the military commission, established pursuant to Congress’s Article I power to “define and punish . . . Offences against the Law of Nations,” lacked subject matter jurisdiction over that offense. Subject matter jurisdiction is absent because MST is not a violation of international law, particularly that subset of international law—the law of war—which is the sole arena in which the military commission could properly exercise jurisdiction. In defining MST in the MCA as a crime “traditionally . . . triable” by a law of war commission, 10 U.S.C. § 950p(a), Congress not only ignored historical reality, it overstepped the limited grant of power conferred on it by the Define and Punish Clause. The CMCR, which relied on an irrelevant and distinguishable assortment of historical records and other sources, erred in holding that MST is a law of war offense. Even if Congress is deemed to have acted within the scope of its authority by “defining” a nascent offense, Hamdan’s conviction is nonetheless an ex post facto prosecution prohibited by both the U.S. Constitution and international law. The MST offense, 10 U.S.C. § 950v(b)(25), appeared for the first time in the MCA, a statute signed into law in October 2006, almost five years after Hamdan was seized by coalition forces in Afghanistan. The elements of this crime were first identified by the DoD in the MMC, promulgated in January 2007 to implement the MCA. These criminal provisions cannot be retroactively applied to Hamdan consistent with the Ex Post Facto Clause of the U.S.  Constitution. The CMCR, because it had erroneously determined MST to be a pre-existing law of war offense, failed to meaningfully address the ex post facto nature of Hamdan’s prosecution and conviction. Finally, the MCA provided Hamdan fewer substantive rights and procedural protections in his criminal trial than would be afforded to a similarly situated U.S. citizen facing the same charges. Discrimination against aliens in connection with the fundamental right of fair and equal criminal trial procedures violates the Equal Protection guarantees of the U.S. Constitution. The CMCR erred in ruling that the Constitution’s Equal Protection rights do not extend to aliens detained at Guantanamo. Any language in cases from within this Circuit suggesting otherwise is pure dicta, and cannot be relied on to hold that aliens, and aliens alone, can be subject to a lesser and unequal form of criminal process.