SCOTUS Blog: “Congress’s War Crimes Power at Issue”
A post on SCOTUS Blog by Lyle Denniston reports that, on Tuesday, the D.C. Circuit Court voted to review congressional authority to apply war crime laws to terrorist acts that took place prior to the enactment of the laws making such acts criminal.
The decision to review arises directly from the case against Ali Hamza Ahmad Suliman al Bahlul, and indirectly from the case against Salim Ahmed Hamdan.
As described by Denniston, Bahlul was sentenced to life in prison after a military tribunal convicted him of providing material support to terrorists, conspiracy to commit terrorist acts, and soliciting others to do so. The Circuit Court “wiped out” Bahlul’s conviction based on the ruling rendered in the Hamdan case.
In the Hamdan case, the Circuit Court overturned the Yemeni national’s conviction effectively narrowing the powers of a military commission to try crimes that didn’t exist at the time the defendant engaged in the activities.
According to SCOTUS Blog, the Obama administration asked for en banc review in the Bahlul case, which was granted. The Circuit Court has asked the attorneys to prepare to argue the issues decided by the Hamdan panel in addition to the following:
- Whether the Ex Post Facto Clause of the United States Constitution protects Guantanamo detainees.
- Assuming the Hamdan panel was correct in “concluding that Congress can only make war crimes out of conduct that violated the international law of war,” whether Bahlul’s alleged conspiracy crimes were violations of international law at the time they were committed.
Denniston comments as follows on the potential legal significance of the coming hearing:
The coming decision by the seven-judge Circuit Court almost certainly will be appealed to the Supreme Court, by whoever loses at the Circuit Court, and that could lead to a major new ruling on the powers of the special military commissions that have had a troubled seven-year history at the U.S. military prison [in] Cuba.
The hearing has been scheduled for September 30.
You can read the full SCOTUS Blog post here.
Here’s a link to the Hamdan decision by Judge Kavanaugh.
Professor Snyder Weighs in on WMD Charges Against Tsarnaev
Professor William C. Snyder weighed in on the weapon of mass destruction (WMD) charges against Dzhokar Tsarnaev, one of the alleged Boston bombers, in an article by Emily Feldman of NBC.
Snyder points out that prosecutors may have trouble meeting the statute’s jurisdictional requirement, which requires proof that the crime impacted interstate or foreign commerce, but doesn’t anticipate any problem arising from their classification of pressure cooker bombs as WMDs.
You can find the full article here.
NY District Court Finds USCs Guilty of Conspiring to Acquire Anti-Aircraft Missiles, Providing Material Support to the Taliban
According to the Department of Justice press release, last week, the U.S. District Court for the Southern District of New York found Alwar Pouryan and Oded Orbach, United States Citizens (USCs) guilty of conspiring to provide material support to the Taliban and conspiring to acquire anti-aircraft missiles. The mandatory minimum sentence for these charges is twenty-five years and the maximum is life in prison.
The pair were arrested last year in Romania following an undercover operation by the Drug Enforcement Agency (DEA) that revealed Pouryan and Orbach’s attempts to sell lethal, military-grade weapons to drug organizations with links to the Taliban. The DOJ press release further reports that one such weapon was a heat-seeking surface-to-air missile.
Sentencing for both men is scheduled to take place September 4.
You can read the full press release here.
Is the White House lying about Tsarnaev?
I have been asked this question a lot by students:
Professor:
I have a question regarding the charges and trial of the Boston bomber. I took your Prosecuting Terrorists course two years ago, and I vividly recall the semester long debate over how and where to try suspected terrorists. It was my understanding that we had the option to try a suspected terrorist in federal court or in a tribunal as an enemy combatant; the issue was always where should we do it?? Further, when tying this information into all the courses I took with Professors ____ and ___, it was clear that once an American citizen took up arms against the US then they lose their protections as a citizen. This was elaborated on in the discussions in class and then later by the controversial targeted killing of American citizens (Anwar al-Awlaki being one). The White House justified their targeted killings (rightly I believe) by designating them as enemy combatants–regardless of citizenship. So, to my question: How/why could the White House make statements today regarding the trial of Tsarnaev, and state that he cannot be tried as an enemy combatant because he is a US citizen? Per the Washington Post: “White House spokesman Jay Carney said that under U.S. law, American citizens such as Tsarnaev cannot be tried by military commissions.” This seems to contradict their own justifications for targeted killings.
Any insight would be greatly appreciated.
The conflict is a statute. The Constitution and Supreme Court, see Quirin, permit trying U.S. citizens as enemy combatants. The Military Commissions Act of 2009 (MCA) authorizes the use of military commissions against only aliens. It is unquestionably true to say that the military commissions established by Congress may only be used to try aliens, because Congress so limited them in the Military Commissions Act.
There are two complications from that straightforward statement. First, the citizen could be held (detained) as an enemy combatant until the end of hostilities (unless they are expected to go on forever). Detention as an enemy combatant is separate from prosecution for a crime. Note Jose Padilla and others who were U.S. citizens detained and interrogated for a long time prior to transfer to the Article III court system and the start of its speedy trial act. That is what some Senators were proposing. So, when Senators proposed that, and people responded, “but it would be illegal to try him as an enemy combatant,” they were talking right past each other – apples and oranges, if you like.
Second, a U.S. citizen could be tried by a military commission other than the one established by the Military Commissions Acts of 2006 and 2009. The President could establish a military commission under his own authority. But, the Supreme Court in Hamdan said that there are three types of military commissions with preconditions to establishing them. Most importantly under Hamdan, the President cannot create a military commission under his own authority to try offenses like conspiracy that were not cognizable under the law of war. Thus, said the Court, he needed Congressional authorization to try Hamdan for conspiracy. Congress gave that to him in the form of the MCAs of 2006 and 2009, but limited those statutes to aliens. Congress could also create a new military commission now or amend the MCA to authorize prosecutions of U.S. citizens by military tribunals.
So, a more correct statement from the White House would be: “White House spokesman Jay Carney said that under U.S. law the Military Commissions Act of 2009, American citizens such as Tsarnaev cannot be tried by the military commission it created.”
Does that help?
Actual Charging Document for Tsarnaev in Federal District Court
Dzhokhar Tsarnaev, the surviving suspect in the Boston bombings, has been charged with using weapons of mass destruction (WMDs) and malicious destruction of property resulting in death. The Washington Post reports that the defendant will not be tried as an “enemy combatant” but as a civilian.
The choice to prosecute Tsarnaev as a civilian is significant as it precludes the government from trying him in a military tribunal. Tsarnaev, thus, will be tried in U.S. federal court.
You can read the criminal complaint here.
You can read The Post article here.
You can find the Department of Justice press release here.
Non-Partisan Report Concludes U.S. Engaged in Practice of Torture
The Constitution Project has published a non-partisan report wherein the eleven-member task force conclude, “[I]t is indisputable that the United States engaged in the practice of torture” in the years following the 9/11 attacks. Furthermore, “The nation’s most senior officials . . . bear ultimate responsibility” for such practices, according to the task force. You can find the full report either by clicking the link above or the image below.
Does the Fourth Amendment Permit House-to-House Searches?
In light of the recent events in Boston, Orin Kerr posed the following question on The Volokh Conspiracy: “Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment?” Kerr suggests that it would depend on the outcome of a fact-specific analysis of the entry’s “reasonableness.” This determination, he explains, requires balancing the government’s interest in searching and the “scope of the privacy invasion.”
The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way.
Kerr notes there is very little case law on this general issue and that which is relevant isn’t very fact-specific. (He references City of Indianapolis v. Edmond, 531 U.S. 32, 32 (2000) and United States v. Paetsch, 2012 WL 5213011 at *1 (D.Colo)).
In closing, Kerr emphasizes how the standing requirement creates obstacles to adjudicating such cases:
The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. . . . As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.
You can read the full post by Orin Kerr here.
A nation apart | The Economist Compares U.S. Response to Terrorism
An Economist editorial from the April 20, 2013, print edition (but appearing on their website on 4/18/13) offers a comparative, internationalist discussion of why the United States is different from some other countries in its reaction to terrorism. In an observation consistent with what my students learn in National Security Law and in Counterterrorism Law, the editorial observes that: “Seldom was a founding document [the U.S. Constitution] more focused on making it hard for politicians to change the law at times of national panic.” As our textbook’s authors point out, the U.S. government is one of separate institutions with shared powers, rather than one based upon separation of powers. For this reason and for others, The Economist concludes that: “In America, for good and ill, horrors are an unreliable way to force change.”
Lexington: A nation apart | The Economist
U.S. Army Spec. Millay Sentenced on Espionage Charges
The Washington Post reports U.S. Army policeman William Colton Millay was sentenced by a panel of 8 military officials on Tuesday to sixteen years in prison and dishonorable discharge for attempting to sell secrets to someone he believed was a Russian spy. Millay’s arrest came after he was caught trading an envelope of information for $3,000.00, although the person to whom he traded the information was not, in fact, a spy. Reportedly, Millay also said he would be willing to work for the Russian government if they “made it worth his while.” The Post article goes on to state:
Prosecutors said Millay was a white supremacist, sick and tired of the military and his country, and didn’t care that his sale of secrets would put his fellow soldiers in harm’s way, AP said. Defense lawyers countered that Millay was emotionally immature and that his attempt at espionage was aimed only at getting him some attention, AP reported.
You can read the full Post article here.
You can read the AP report here.
Piece-by-Piece Book on Obama Administration’s Counterterrorism Methods is Released by Lawfare Blog
Lawfare blog has announced the launch of a book by Benjamin Wittes and Kenneth Anderson and published by the Hoover Institution Task Force on National Security and Law that exclusively analyzes the Obama Administration’s approach to national security legal issues.
The book, Speaking the Law: The Obama Administration’s Addresses on National Security Law, will be released one chapter at a time on Lawfare blog until it is complete and hardcover versions are available.
As Wittes and Anderson describe,
Consider it the White Paper the administration has never issued—a single document that brings together in one place everything the administration has said publicly about the law of the conflict with transnational terrorist groups.
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- Professor Snyder Weighs in on WMD Charges Against Tsarnaev
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- Is the White House lying about Tsarnaev?
- Actual Charging Document for Tsarnaev in Federal District Court
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