Hamdan, And Bahlul, And Suleiman, Oh My!

Some court documents came in over the weekend: Salim Ahmed Hamdan has filed his reply brief in his appeal in the D.C. Circuit Court. You can read it in full here. The summary of the argument is excerpted here:

The Government now admits that the crime of which Petitioner was convicted, Providing Material Support for Terrorism (“MST”), is not an offense against the “Law of Nations.” Under the Define and Punish Clause, U.S. Const. art. I, § 8, cl. 10, Congress’s power to punish offenses by military commission is limited to law of war offenses, a subset of international law, i.e., the “Law of Nations.” The Government’s belated concession—after insisting for five years that MST is a war crime—establishes that the military commission that convicted Petitioner was without subject matter jurisdiction over the offense of MST. The Government tries to avoid the consequences of its admission by arguing that Congress’s general war powers allow it to expand military commission jurisdiction over offenses purportedly recognized by an invented body of law it calls the “U.S. common law of war.” It contends that MST is such an offense. Alternatively, it claims that the Necessary and Proper Clause can supplement the Define and Punish Clause to allow a non law of war offense like MST to be tried by military commission. Neither argument has merit. Unambiguous Supreme Court precedent anchors Congress’s power to establish law of war military commissions to the Define and Punish Clause, and rejects reliance on the Necessary and Proper Clause to expand the jurisdiction of military commissions. Likewise, the “U.S. common law of war” is a fiction that has no basis in law and is barred by longstanding precedent repudiating federal common law crimes. Adopting either of these arguments would dangerously expand the jurisdiction of military commissions, encroaching on a core judicial function of Article III courts in violation of separation of powers.

Next, the Government contends Petitioner’s conviction did not violate ex post facto, based on its reasoning by analogy that crimes other than MST provided “fair notice” MST could be criminalized as well. But MST was not “defined” by Congress until five years after the charged conduct; the Government’s attempts to justify retroactive application of that criminal sanction are unpersuasive. Finally, the Government responds to Petitioner’s equal protection argument by maintaining that Constitutional due process does not apply at Guantanamo. This argument cannot be squared with Boumediene v. Bush, 553 U.S. 723 (2008), which renders those constitutional protections applicable here.