The Obama Administration on Wednesday sent a signal that it is planning to return to the Supreme Court soon, seeking to revive the power of military commissions to try some of the most common anti-terrorism charges, on providing aid to a terrorist network or leader.  In a new brief filed in the D.C. Circuit Court in one of the Guantanamo war crimes cases, the Administration’s lawyers laid out their argument that Congress had the power to make such support a crime, even for actions that suspects had taken before Congress had acted — contrary to a Circuit Court decision in October (discussed in this prior post).

The issue has arisen in a number of war crimes cases, but initially did so in the case of Salim Ahmed Hamdan, a Yemeni national often described by prosecutors as a driver for Osama bin Laden.   The new brief was filed in the case of another bin Laden aide, Ali Hamza Ahmad Suliman Al Bahlul, who was convicted of acting as a film propagandist for the Al-Qaeda leader.  The Administration is giving up its defense of Al Bahlul’s war crimes convictions, but it is doing so because of the Circuit’s ruling in the case of Hamdan — the case that is now ready to be taken to the Supreme Court.

The new government brief said it was spelling out its rationale for terrorist support crimes “in order to preserve the government’s arguments for further review.”   The government has conceded that the Hamdan decision is controlling at the Circuit Court for Al Bahlul’s case, too, so it presumably might try to take that case on to the Supreme Court after the Circuit Court responds to the new brief.  The Hamdan case is more advanced procedurally: the time has expired for it to ask the full Circuit Court to review en banc Hamdan’s case, so the government would now be free to pursue a petition to the Supreme Court in that case.   The Supreme Court has ruled once before as the government pursued charges against Hamdan — the Justices’ 2006 decision in his case striking down former President Bush’s military commission system.

Hamdan, however, was later convicted of providing “material support” for terrorism after a trial in a modified military commission system at Guantanamo.   Hamdan has served his sentence and has gone home to Yemen, but challenges by his lawyers continued in a military appeals court, where he lost, and in the D.C. Circuit, where he won.   In its ruling, a three-judge Circuit panel ruled that Congress had no power to make “material support” into a war crime for events that pre-dated the enactment creating that crime in 2006.   The ninety-day period for the government to take the Hamdan case to the Supreme Court expires next week, and it does not appear that the government has sought an extension of the time to file.

The Administration has taken the position that the Circuit’s decision nullified not only war commission convictions for material support for terrorism, but also convictions for a conspiracy to commit war crimes, and for solicitation of someone else to commit war crimes.    Al Bahlul was convicted of all three of those charges, and the government’s brief filed Wednesday said that the Hamdan decision”requires reversal” of all three of those guilty verdicts against Al Bahlul.   In the main point of the brief, however, government lawyers spelled out “the government’s position that the legal rationale” of the Hamdan decision “is incorrect.”

In a news story in Thursday’s New York Times, reporter Charlie Savage said that Attorney General Eric Holder had overruled Solicitor General Donald B. Verrilli, who had reportedly argued — as have some military lawyers — against trying to revive the support charges in the wake of the Hamdan decision.   Savage, in other recent stories, has reported on a high-level debate within the government about how to react to the Circuit Court’s Hamdan decision.

That debate reportedly also affects how the government is proceeding before military commissions in the highest-profile terrorist cases — the five prosecutions against those who allegedly planned the terrorist attacks against the U.S. on September 11, 2001.   The Defense Department said on Wednesday that the chief military prosecutor at Guantanamo, Major General Mark S. Martins, had decided to drop Hamdan-like charges in those major cases.   (Savage’s Times article Thursday noted that Gen. Martins did not sign the government’s new brief in the Al Bahlul case, as he had done in earlier filings in that case.)

The Supreme Court has not had a major case on war crimes or war-on-terrorism issues since its 2008 decision in Boumediene v. Bush, creating for Guantanamo Bay detainees a constitutional right to challenge their confinement in civilian court.    Aside from some secondary cases not dealing directly with the military’s role in the war on terrorism, the Justices have largely left wartime disputes to lower courts in the past four-plus years.   But a government appeal in the Hamdan case could put the Justices back in the center of the constitutional controversy over war powers in the age of global terrorist movements.

In the government’s brief in the Al Bahlul case, Justice Department attorneys said that, in the aftermath of the Hamdan ruling by the Circuit Court, “only violations of the international law of war and pre-existing statutory offenses, such as spying and aiding the enemy, are subject to trial by military commissions.”

Even so, it went on to argue that, in the 2006 federal law in which Congress authorized the creation of a new military commission system, Congress had codified crimes that it determined had “traditionally been recognized as violations of the law of war that may lawfully be tried to military commissions, and it expressly stated that persons subject to trial under the 2006 Act may be tried for these offenses for conduct committed before the 2006 Act was enacted.”   The Circuit Court’s ruling “cannot be squared with the plain language” of the 2006 law, the brief contended.

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Hamdan case back to Court?, SCOTUSblog (Jan. 10, 2013, 12:19 PM),