280 F. Supp. 3d 1305
M.C.2017Background
- Appellees were charged in 2011–2012 for roles in the September 11, 2001 attacks; Charges III (attacking civilian objects) and V (destruction of property in violation of the law of war) were referred to a capital military commission.
- The Military Commission Judge dismissed Charges III and V with prejudice in 2017, ruling they were time‑barred by Article 43 of the UCMJ (a five‑year limitations rule) and that reviving them would violate the Ex Post Facto Clause.
- The judge treated court‑martial practice (including Article 43) as applicable to military commissions absent a clear, practicable exception under Article 36, UCMJ, and found the government had not shown tolling or other exceptions.
- The government appealed under 10 U.S.C. § 950d(a); the appellate court reviewed the statutory‑interpretation and constitutional questions de novo.
- The appellate court examined historical practice (Civil War, WW II tribunals), Hamdan/Article 36 constraints, the 2006 and 2009 Military Commissions Acts (MCA) provisions eliminating time limits for MCA offenses, and Ex Post Facto doctrine precedents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether UCMJ Article 43 (five‑year limitation) applies to military commissions for law‑of‑war offenses committed in 2001 | Article 43 governs military tribunals generally; commissions should follow court‑martial limitations absent clear exception | MCA (2006/2009) provides offenses triable by commission are "triable ... at any time without limitation," and historical practice supports no limitation for war‑crimes commissions | Article 43 does not apply to MCA commissions; MCA supplies an unlimited limitations period for these charges |
| Whether applying the MCA provision retroactively to offenses committed in 2001 violates the Ex Post Facto Clause | Reviving time‑barred offenses would be ex post facto (impermissible) | MCA codified longstanding law‑of‑war practice (no limitation) and was enacted by Congress with presidential signings; therefore not ex post facto | No Ex Post Facto violation: Congress and the President intended to preserve preexisting law‑of‑war rule of no limitation; prosecutions do not violate the Clause |
| Whether customary international law requires or forbids statutes of limitation for war crimes, and whether it controls here | Appellees: customary international law may prohibit retroactive removal of limitations | Government: international instruments (e.g., Rome Statute, UN convention) do not bind U.S.; domestic MCA controls; historical U.S. practice aligns with no limitation | International instruments inform but do not override clear domestic statute; MCA governs and is constitutional here |
| Burden on tolling/time‑bar defense and procedural implications | Appellees bore burden and raised limitations defense; government failed to prove tolling and thus charges time‑barred | Government must prove exceptions/tolling once defendant raises the defense; historical/practical reasons support tolling in wartime circumstances under MCA | Court notes Musacchio principle but holds MCA’s unlimited rule makes dismissal improper; appellate decision reverses dismissal and remands for proceedings consistent with MCA |
Key Cases Cited
- Stogner v. California, 539 U.S. 607 (clarifies Ex Post Facto prohibition on reviving expired limitations)
- In re Yamashita, 327 U.S. 1 (recognizes military commission jurisdiction for law‑of‑war offenses during and shortly after hostilities)
- Hamdan v. Rumsfeld, 548 U.S. 557 (limits President's Article 36 authority; requires practicability analysis for parity with courts‑martial)
- Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (canon on strong presumption supporting actions pursuant to Acts of Congress; Youngstown concurrence quoted on deference)
- Musacchio v. United States, 136 S. Ct. 709 (allocation of burden once defendant raises a statute‑of‑limitations defense)