Sunday, July 27, 2008

Is that a surface to air missile in your car?

The stories out of the Salim Hamdan "trial" have been interesting. Here's one from McClatchy that raises a couple of interesting questions.

The article notes that Hamdan has provided some cooperation, including identifying some of Sammy bin Laden's bodyguards, one of whom was inexplicably released without any charges. But that's not what Spotty wants to talk about. It's this:

This startling information [that the bodyguard was released] was revealed in the fourth day of the war crimes trial of Salim Hamdan, 37, facing conspiracy and material support for terror charges as an alleged member of bin Laden's inner circle.

Conspiracy? Material support? There are an awfully lot of people who better keep their fingers crossed that conspiracy and material support aren't war crimes.

Why Spotty?

Spot hoped you would ask, grasshopper.

You knew I would.


Spot has addressed these issues before. Quoting an article by Ambassador (and now law professor) David Scheffer, Spot posted:

Since the newly established military commission before which Mr. Hamdan is being prosecuted must, by its own terms, remain limited to adjudicating “violations of the law of war and other applicable laws by military tribunals,” the first requirement of any such judicial body must be to frame the charges correctly given its limited jurisdiction. That is why it has been so astonishing to see the government’s charge sheet against Mr. Hamdan repeatedly invokes a crime that does not exist - under U.S. or international law. There is no crime of conspiracy to commit war crimes.

Ambassador Scheffer also said this:

Neither the Uniform Code of Military Justice nor Title 18 of the U.S. Code, which includes the War Crimes Act of 1996 as amended, aligns the crime of conspiracy with the law of war. It is simply implausible, as the Nuremberg judges discovered, to sweep vast numbers of individuals into conspiracy theories about war crimes. A higher standard is required, and that standard is joint criminal enterprise - which of course is a standard for proving a specific crime, not a stand-alone theory of liability.

As Spot's linked post goes on to say, the Congress did some backing and filling and created the crime of conspiracy and material support, but did so long after Salim Hamdan and most everybody else had been rounded up.

What do we call it when conduct is made retroactively a crime?

An ex post facto law, Spotty?

Right, grasshopper.

Ambassador Scheffer is not the only one who has noticed this. In recent days, Spot has also quoted Professor Marty Lederman discussing the same thing:

The motion asks Judge Allred to either defer to an [sic] supposed finding of the CSRT [because the government tried to start tghe first trial against Hamdan without a CSRT finding against him] that Hamdan is an unlawful enemy combatant, or to make such a finding himself. The oddest thing about the Hamdan motion, however, is that the government never really gives a persuasive factual account of why Hamdan is an enemy combatant, let alone an "unlawful enemy combatant" as that term is defined in the MCA.

* * *

[T]he government sets out the facts from which Judge Allred is urged to make his own finding that Hamdan is an unlawful enemy combatant. The alleged facts are these:

Hamdan served as Bin Laden's personal driver and as a "member" of bin Laden's body guard detatchment;

Hamdan "armed himself with a weapon";


Hamdan "was captured by Northern Alliance forces in the vicinity of Kandahar in possession of a weapon."

That's it.

It's not at all clear that such conduct described anything unlawful at the time it is alleged to have occurred. (Subsequent to the conduct, Congress passed a law making it unlawful to provide personal services to a terrorist organization; but I don't believe that was an operative crime at the time.)

There are a lot of people who participated in the preparation for and the execution of the war against Iraq. If that war is ever found to be an illegal aggressive war undertaken by George Bush,  there could also be a whole lot of people swept up by claims of conspiracy.

There is one other thing that Spot wanted to mention. What was it? Oh, yes - -

Based on the McClatchy report linked above, Hamdan's interrogators are mentioned as the principal, maybe only, witnesses against him. Most of the evidence is based on interrogations. Spot doesn't have a link right now, but Hamdan was certainly one of the detainees subject to "enhanced interrogation techniques," and Spot recalls that Hamdan is one of the detainees who was waterboarded.

How reliable is that?

Spot predicts that Salim Hamdan's name has not for the last time appeared in the caption for a US Supreme Court decision.

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