Salim Hamdan v. United States

Hudson, or Central either Zauderer under remain for the It would reverse.

I would remand to address court on

district under the challenges companies’

tobacco Act, supra see Procedure

Administrative 1.

note HAMDAN, Petitioner Ahmed

Salim America,

UNITED STATES

Respondent.

No. 11-1257. Appeals, Court of

United States

District of Columbia Circuit. 3,May

Argued 2012.

Decided Oct.

Joseph M. McMillan argued the cause for petitioner. With him on the briefs Harry Jr., were H. Schneider Charles C. Sipos, Martinez, Khanna, Angela R. Abha Thurschwell, Adam and Jahn C. Olson. Dixon, Kadidal, Shayana J. Wells D. Pardiss Kebriaei were on the brief for amicus curiae Center for Constitutional Rights petitioner. David C. Lachman was on the brief for amicus Legal curiae International Scholars Terry D. Zyberi Gill and Gentian in sup- port petitioner.

John S. Summers and Michael J. New- man were on the brief for amicus curiae Professor David W. Glazier in support of petitioner. 11, 2001, Congress on September and Kimball R. States C. Schaerr

Gene wage authorized the President brief for amicus on the Anderson were Qaeda. That war continues. against al sup- Law Scholars curiae Constitutional petitioner. port of war, In when the United States David were Hafetz and Cole Jonathan custody enemy captures or takes of alien Japanese amicus curiae on the brief for supporters, combatants their substantial League, sup- et al. in Citizens American for the duration of may it detain them port petitioner. Moreover, hostilities. the United States may try enemy alien combatants Pue, unlawful Attorney, Depart- F. De U.S. John military commissions for their war before Justice, the cause for re- argued ment Rumsfeld, crimes. See Hamdi v. U.S. him on the brief were spondent. With 507, 518-24, 124 159 L.Ed.2d S.Ct. Monaco, Attorney Gen- Lisa Assistant O. (2004); Quirin, parte Ex Security, Jeffrey M. National eral for (1942). 2, L.Ed. 3 White, Smith, Attorney, Cap- S. Edward Counsel, JAGC, tain, Navy Appellate U.S. questions about This case raises Counsel, Gilligan, A. Appellate and Francis authority to scope pros- of the Executive’s Office of the Prosecutor Com- current ecute war crimes under federal missions. statutes. dispute involves the mili- particular This SENTELLE, Judge, Before: Chief tary commission conviction of Salim Ham-

KAVANAUGH, Judge, Circuit dan, Qaeda an al who worked for member GINSBURG, Judge. Senior Circuit Hamdan Osama bin Laden. was captured Afghanistan. He later Opinion by for the filed Circuit Naval at transferred to the U.S. Base KAVANAUGH, Judge with whom Chief Bay, Guantanamo Cuba. joins except as to Judge SENTELLE Judge footnote and with whom Senior just Hamdan was not detained at Guan- joins except GINSBURG as to footnotes enemy tanamo as an combatant. He was 6, and 8. being also accused of an unlawful by combatant and was tried and convicted Opinion filed Senior Concurring military sup- commission for “material Judge Circuit GINSBURG. terrorism,” port specified a war crime KAVANAUGH, Judge: Circuit by Military Commissions Act of 2006. 950t(25); § See U.S.C. see also 10 against The United States is at war al 950v(b)(25)(2006) (previous U.S.C. codi- Qaeda, organiza- an international terrorist fication provision). of same Hamdan’s are, Qaeda’s Al goals among tion. stated conviction was on actions he took based things, to drive the other United States from 1996 to enactment of 2001—before East, posts in the Middle to devas- Commissions Act. At the time Israel, help tate the State of and to estab- conduct, of Hamdan’s the extant federal over the lish radical control Great- Islamic statute limited authorized and Qaeda Al er Middle East. uses terror to try commissions to violations the “law Qaeda Al objectives. advance its broad war.” U.S.C. 821. uniforms, they terrorists do not wear crime, punishment As for his war Ham- target American civilians and members Military, well as allies. dan was sentenced commis- the U.S. as U.S. with Qaeda’s imprisonment, After al attacks on the sion to 66 months’ United already prosecution served. authorize retroactive of crimes time credit for some Al- expired prohibited Hamdan’s sentence that were not crimes may have contin- though the United States by military triable commission under U.S. until the end of ued to detain law at the time the conduct occurred. to its wartime deten- pursuant hostilities Therefore, Hamdan’s conviction Hamdi, 542 at 518— authority, see tion only if affirmed the relevant statute that trans- Hamdan was S.Ct. time of was on the books his con- in late to Yemen and then ferred encompassed duct—10 ma- 821— release, released there. Even after his terial for terrorism. appeal his U.S. Hamdan has continued Third, when Hamdan committed the rel- crimes conviction. evant conduct from 1996 to Section presents several issues. appeal This provided military of Title 10 that com- First, Hamdan dispute is the moot because may try missions violations of the “law of already served his sentence and been has war.” The “law of war” cross-referenced Second, custody? does released in that statute is the international law of authority prosecute the Executive have Quirin, 27-30, 35-36, war. See terrorism support Hamdan for material 63 S.Ct. 2. Hamdan When committed the Military basis of the 2006 Com- on the sole in question, conduct the international law specifically lists ma- missions Act—which crimes, proscribed variety of war of war a war crime support terial for terrorism as including forms of terrorism. At by military commission—even triable time, however, the international law of war conduct occurred from though Hamdan’s proscribe support did not material for ter- 2001, before enactment of that 1996 to Indeed, rorism as a war crime. the Exec- Third, not, pre-existing if Act? did acknowledges utive Branch that the inter- military war-crimes statute that authorized national law of war did not—and still does commissions at the time of Hamdan’s con- identify support material for terror- providing duct—a statute not— Therefore, a war crime. ism as the rele- may try commissions violations of the “law war,” vant statute at the con- § mate- time Hamdan’s proscribe 10 U.S.C. 821— support proscribe rial for terrorism as a war crime? duct—10 U.S.C. 821—did not support terrorism as war conclude as follows: We crime. First, despite Hamdan’s release from This custody, this case is not moot. Military Because we read the Commis- of a conviction. The Su- appeal direct retroactively punish sions Act not to new long has held that a defen- preme Court crimes, and because material appeal dant’s direct of a conviction is not pre-existing terrorism was not a war crime release from mooted the defendant’s Hamdan’s convic- under 10 U.S.C. custody. tion for material for terrorism judgment Second, cannot stand. We reverse Congress’s with stat- consistent Ex the Court of Commission Review and so as to avoid a serious ed intent issue, direct that Hamdan’s conviction for interpret we Post Facto Clause Act 2006 not to material for terrorism be vacated.1 Military Commissions charges against Hamdan —either for conduct judgment preclude detention 1. Our would not prohibited by "law war” under 10 hostilities of Hamdan until the end of U.S. judgment any Qaeda. conduct since 2006 against 821 or for al Nor does our violated the Commissions preclude any future commission has narrowly being I avoided killed in that mili- tary action. Hamdan traveled from In Salim In October at the direction of bin to Pakistan and then to his native Yemen leaders, Qaeda Qae- Laden and senior al al jihad. In Afghanistan participate da bombed the off U.S.S. Cole the coast of Qae- Afghanistan, Hamdan attended al Yemen, killing injuring Americans and training camp. camp, At the Hamdan da time, many others. Around that training, met weapons received Osama bin to Afghanistan returned from Yemen. Laden, and listened to bin Laden’s lec- August Hamdan drove bin Lad- tures. planning en to various meetings Afghan- Later Hamdan became an al days istan. September Several before Qaeda driver. His duties included trans- 2001, bin Laden told they Hamdan that supplies, and porting personnel, weapons compound had to evacuate their because of Qaeda guesthouse between an al al an impending operation. Hamdan drove Qaeda’s Farouq training camp al in Af- bin They Laden to Kabul. later moved ghanistan. Eventually, Hamdan became Afghanistan. series of locations around personal Osama bin Laden’s driver and 11, 2001, September Qaeda On al at- bodyguard. States, tacked killing the United thousands 1996, In August Osama bin pub- Laden causing civilians and long-term massive licly declared war on the United States. damage economy to the American way and That declaration came after various al of life. Qaeda attacks, terrorist including the 1993 days In the followingthe attacks Sep- bombing of the World Trade In Center. 11, 2001, tember Congress passed and 1998, bin calling Laden issued a fatwa George President signed W. Bush the Au- Americans, the indiscriminate killing of in- thorization for Use of Military Force. cluding American civilians. Hamdan was That law authorized the President fully aware of bin public Laden’s state- to necessary use all and appropriate targeting ments the United States. against nations, force organiza- those 1998, August Qaeda operatives al tions, persons planned, or he determines Kenya bombed U.S. Embassies in authorized, committed, or aided the ter- Tanzania, killing people, including rorist attacks that on Septem- occurred generally Americans. Hamdan was aware ber or organiza- harbored such that such an planned. attack was Around tions persons, or prevent any order to attack, the time of the Hamdan assisted future acts of international terrorism Osama bin in evacuating Laden from Kan- against the United States such na- dahar moving Afghanistan. around tions, organizations or persons. 107-40, (2001). Pub. L. No. Stat.

Later in August asserting the President’s Article II power of self-de- Consistent with the 2001 Authorization fense, President Force, Clinton ordered the for Use of President Bush targets to bomb in Afghanistan in directed the use of force kill capture to attempt to kill bin Laden. Bin Qaeda Laden and detain al operatives, and where judgment that, preclude appro-

Act. Nor does our question have occasion to aas matter of priate charges fact, criminal in civilian court. engaged in the conduct for Moreover, our decision concerns which he was convicted. legal authority. We commission’s do not Qaeda military al try unlawful com- commission as an to appropriate unlawful had committed war crimes. combatant committed batants who who had war part legal as the overall various On October crimes.2 Hamdan raised ob- Bush operation, jections President ordered U.S. to and the prosecution, case wage war troops Afghanistan ultimately Supreme into way wound its there, well Qaeda against as against al Court. The held that in con- government Taliban place rules then in commission support- and had been Afghanistan trol of statutory contravened limits because the Qaeda. ing harboring al respects rules did not in certain comply statutory with contained in restrictions the President On November Rumsfeld, See Hamdan 836. U.S.C. mili- establishing issued an executive order 613-35, try Qaeda al tary members commissions (2006). split L.Ed.2d The Court 4-3 who commit- and aiders and abettors had and thus a separate on did not decide under ted crimes as defined the “laws war conspiracy cogniza- issue: whether was a Mili- “applicable of war” or other laws.” charge ble commission under Reg. Nov. 66 Fed. tary Order the “law of of 10 purposes war” for 57,833; 57,833-34. The executive order Compare 548 U.S. at solely on rely did the Presi- purport 595-612, (Stevens, J., plu- 126 S.Ct. 2749 rather, authority; dent’s it constitutional rality opinion) is not a law (conspiracy separate congression- cited statutes as two crime), with id. al for the President to em- authorization (Thomas, J., dissenting) (conspiracy 2749 is Au- ploy military commissions: 2001 crime). (Justice Kennedy a law of war did Military of Force and thorization for Use issue; not address that Chief Justice 821, Rob- § long-standing statute U.S.C. case.) did not in participate erts military commissions to authorized try of war.” violations of the “law case, In the several Justices

In cap- Hamdan was specifically Congress clarify November to invited tured while Afghanistan driving toward scope statutory authori President’s driving The car he was con- Kandahar. ty try to military to use commissions un Also in tained two anti-aircraft missiles. for enemy lawful alien combatants Qaeda-issued Hamdan, the car was an al document 636, 126 crimes. See 548 U.S. at carry the bearer authorized to id. J., (Breyer, concurring); S.Ct. 2749 weapon in Afghanistan. captors Hamdan’s 636-37, J., (Kennedy, 126 S.Ct. 2749 con him He turned over U.S. authorities. curring). Bay,

was later transferred Guantanamo In the wake of the Court’s Cuba, Military him and the U.S. detained Hamdan, Congress decision enacted a enemy there an combatant. commissions statute. See military new Guantanamo, Military Pub. Hamdan not Act of L. At Commissions 109-366, particular enemy was as an but No. 120 Stat. 2600. Of detained combatant here, expanded mili- eventually charged Congress also with one count relevance tary beyond prosecuting vio- conspiracy and was to be tried before commissions Quirin, belligerency parte enemy Ex Generally speaking, soldiers or com- unlawful.” (1942). com- 87 L.Ed. For batants are considered unlawful Qaeda, example, purposes against they, join sup- al when for the war batants concept port organization waging defined statute. See 10 unlawful war or now § they specific “acts which render their U.S.C. 948a. commit war,” generic spying, authority “law of lacked lations of under Article I of the enemy, aiding which were the Constitution make material at the time. crimes listed statute See terrorism a war by military crime triable §§ 906. Of most im- 10 U.S.C. (ii) commission; event, in any here, portance Congress alleviated some of Act, Military Commissions which list- uncertainty highlighted in Hamdan ed material support for terrorism as a war of war” in phrase about the “law crime, could not retroactively applied by listing large specific number of him because his conduct occurred from charged by war crimes that could be mili- (iii) 2001; 1996 to that the statute commission, tary including conspiracy and effect at the time of alleged his conduct— terrorism. See military which limited (In 3(a), 120 Stat. at 2630. Con- commissions to violations the “law of gress Military a new enacted Commissions war”—did not authorize prosecution of ma- Act; that changes law did not make rele- terial support for terrorism as a war vant to Pub. L. this case. See No. In crime. Court of 2574.) 123 Stat. Commission Review affirmed the convic- tion.

After See United States v. passage of the 2006 Com- (C.M.C.R.2011) (en banc). Act, F.Supp.2d 1247 charged missions Hamdan was anew before a U.S. commission on one statute, By Hamdan has an automatic charge conspiracy charge, and one con- right appeal to this Court. See 10 U.S.C. taining eight specifications, of material § 950g. support for terrorism. trial, At his commission Ham- II acquitted dan was conspiracy but con- We must first address the issue specifications victed of five sup- of material is, of mootness—that appeal whether this port August terrorism. he is moot because Hamdan has been re was sentenced to 66 months’ confinement custody. leased Although U.S. having credited for already served parties agree appeal moot, that the is not most of that time. jurisdictional a question mootness is 2008, When his sentence ended later in we must independently consider. See against Qaeda the war al had not ended. — Male, United States v. Juvenile U.S. Therefore, the United States have -, 2860, 2864-65, 131 S.Ct. 180 L.Ed.2d continued to detain Hamdan as an (2011); York, 811 Sibron v. New 392 U.S. 635, combatant. See 548 U.S. at 40, 8, 1889, 50 n. 88 S.Ct. 20 L.Ed.2d 917 2749; 126 Rumsfeld, S.Ct. Hamdi v. 542 (1968). 507, 518-24, U.S. 124 S.Ct. 159 (2004). L.Ed.2d 578 But in November This case is a direct appeal of a by Hamdan was transferred the U.S. military commission conviction. In the Yemen, Military to and he was then re- context, criminal a appeal direct of a crimi leased on January 8, 2009, or about in nal by conviction not mooted a defen Yemen. Sibron, dant’s custody. release from See release, After his Hamdan U.S. 88 S.Ct. The Supreme nonetheless continued appeal military his Court in part U.S. com- has so ruled because of the mission conviction. On appeal legal to the en collateral consequences of a convic banc Court Military namely, Commission Re- the possibility that the de tion— view, (i) argued Congress fendant could commit or be tried for a new release, could tion after his Court dismissed offense, punishment for which this Those past of a conviction. moot. take account the case as pres- consequences are of course collateral just military Hamdan is a de- But not (other all criminal cases virtually ent in tainee; he has been convicted of war when has than, example, the defendant Therefore, military by crime commission. obvious- after the conviction and thus died our recent decision does not control Gul offense). The ly cannot commit new Rather, by controlled here. case is consequences present are same collateral appeal that a of a principle direct cases. military commission conviction by not conviction is mooted defendant’s See, e.g., Manual Commis- custody. release from (2012) 1001(b)(1)(A) 1001(a)(2), Rules sions, (in military sentencing, commission This case is not moot.

prosecution may evidence “introduce convictions, foreign or military or civilian Ill domestic, aggrava- of the accused” as a law codified at 10 3553(a)(1) (sen- Under now factor); ting 821, Congress author long has take “the courts shall into account tencing military ized the Executive use commis defen- and characteristics of the history dant”).3 try committed Applying relevant sions crimes Quirin, conclude enemy. we therefore Ex precedent, parte See (1942). military of a commis- appeal that a direct L.Ed. 3 63 S.Ct. That statute mooted sion is likewise not try conviction authorizes commissions to vio release. term, defendant’s the “law of we lations of war”—a below, that long has been under explain sure, does principle generally To to mean the international law of war. stood to the habeas context where apply Rumsfeld, See Hamdan v. for execu challenging the basis detainee is 126 S.Ct. 165 L.Ed.2d 723 case is tive Such a habeas detention. (2006) 641, 126 (plurality); id. at S.Ct. after re moot the detainee’s sometimes J., Quirin, (Kennedy, concurring); Kemna, Spencer v. lease. See 27-30, 35-36, 2. Two (1998); U.S. L.Ed.2d (D.C.Cir. au longstanding separately other statutes Obama, 12, 17 Gul v. 652 F.3d 2011). prosecutions thorize commission In our recent decision habeas Gul, aiding enemy. See 10 spying detainee where a former Guantanamo objected military §§ 906.4 to a detention determina- U.S.C. Ginsburg concurring opinion, Judge al-

3. in circumstances the accused owes In his where change existing Supreme Court to legiance party enemy calls for to the whose he is al- so, doing Judge Gins- aided, doctrine. mootness by militaiy leged have be triable burg suggests that is in Yemen and Hamdan commission”). loyalty require- The breach of landing little chance of in future trouble has explicit Military ment is made in the 2006 system. Maybe legal Maybe. not. in the U.S. Act, the Commissions which re-codified 950t(26) (“Any person § crime. enemy" “aiding proscription in 10 4. The who, subject chapter an to this in breach of § which was in the first codified States, allegiance duty know- or to the United Articles of War see Winthrop, William ingly intentionally of the aids an 102-03, (rev. Law Precedents States, co-belligerents one United of the 1920), generally requires of a breach 2d ed. military enemy, punished shall as enemy. duty loyalty as well aid to the as direct.”) Hamdan, chapter may under commission n. See 548 U.S. at 600-01 added). enemy may, (emphasis (plurality) ("aiding S.Ct. 2749 After the Court’s 2006 decision contends that material for support terror- Congress enacted a new mili- ism is not a recognized international-law that, tary among commissions statute oth- war crime. The responds Government things, scope er clarified of the Execu- that Hamdan’s focus on the Define and authority try tive’s war crimes. See Punish misplaced. Clause alone is Accord- Military Commissions Act of Pub. L. Government, ing to the the Declare War 109-366, particular No. 120 Stat. 2600. Of I, Clause and other war clauses in Article here, Congress expanded relevance mili- supplemented as by Necessary tary beyond trying commissions violations Clause, Proper independently authorize war,” generic spying, of the “law of and Congress to military establish commissions aiding enemy. Congress instead also try enemy’s an war crimes. And the large listed a specific number of war Government further contends that Con- by crimes that could be military tried com- gress’s authority broad under the Declare mission, including conspiracy and material War Clause is not by constrained 3(a), support for terrorism. See id. evolving and often difficult to discern stan- (now Stat. at 2630 codified at 10 U.S.C. Therefore, dards of international law. 950t). it, the Government Congress sees has au- argues Congress thority to make material support for ter- authority lacked under I Article of the rorism a war crime triable military namely, the Define and Pun Constitution — commission. ish Clause—to define support material do not We decide that ques- antecedent terrorism subject as a war crime to trial tion. Even assuming arguendo that Con- by a commission.5 Hamdan gress had authority under its various Arti- Congress’s maintains that authority under powers cle I war the Define and Punish Clause is establish material limited to proscribing support offenses that are already ille terrorism as a war crime in gal under international law. And Hamdan 2006,6 Commissions Act of we sufficient); Hamdan, 5. provides The Define and Punish Clause 548 U.S. at Congress power: pun- has the "To define and (resolving S.Ct. 2749 question antecedent ish Piracies and Felonies committed on the whether generally relevant statutes author- Seas, high against and Offences the Law of commissions, ized concluding before I, 8,§ Const, Nations.” U.S. art. cl. 10. that the commission in Hamdan's case con- limits). Here, separate statutory travened Judge Kavanaugh alone concurs in this Judge Kavanaugh would conclude that Con- question Congress’s footnote. Because I, gress authority has under Article 8 to power Article I to make material establish material for terrorism as a thoroughly terrorism a war crime has been that, alien, war crime when committed argued, question briefed and because that by military be tried commission. Al- issue, logically post antecedent to the ex facto though for terrorism is not importance and because deciding crime, yet an international-law war Con- way provides wartime cases ain clear gress’s powers under Article I are not guidance, Judge Kavanaugh appro- believes it by defined or constrained international law. priate question to address the antecedent —as The Declare War Clause and the other Article the resolving Court itself did in sim- powers I war clauses do not refer to interna- ilar antecedent issues in both Hamdi and law, Hamdi, 516-24, tional unlike the Define and Hamdan. See Punish U.S. at Moreover, Congress Clause. (resolving long prohib- has S.Ct. 2633 several questions, beyond specified "threshold” ited war including by crimes those whether en- in- emy may combatants be detained ternational law. (aiding for the du- See 10 U.S.C. hostilities, Quinn, ration of concluding enemy); before the (spying); that id. cf. procedures the used to detain Hamdi were in- 63 S.Ct. 2. The U.S. Constitution Congress when As well understood Act not authorize that did conclude this to the it unusual statement appended that conduct prosecution for retroactive statute, bars Con the U.S. Constitution Act’s enactment before the committed was enacting punitive post ex facto gress at the by law prohibited not U.S. and was Const, I, § art. cl. 3 laws. See U.S. Here, Ham- conduct occurred. time the (“No post Bill of Attainder ex facto Law or from 1996 conduct occurred dan’s passed.”). Among things, other shall be of the enactment 2001—before Facto bars laws that the Ex Post Clause explain, Act. And as we will Commissions retroactively punish that was not conduct the time of effect at the federal statute retroactively prohibited, or that previously § 821—did conduct—-10 U.S.C. Hamdan’s punishment already prohibited increase for material prosecution not authorize Youngblood, Collins v. conduct. See for terrorism. 111 L.Ed.2d 30 Bull,

(1990); Dall. Calder A (1798) Chase, (opinion 1 L.Ed. J.). pre Ex The Post Facto Clause thus from the text of the is clear As Executive from Congress vents was Congress Act of Commissions retroactively applying a federal criminal facto quite post about the ex concerned to conduct committed before statute retroactively prosecuting implications was enacted. statute conduct com- under Act for someone itself in the Congress recognized As Congress its before enactment. mitted text, by statutory prosecution retroactive any prob- post with facto to deal ex tried similarly raise military commission could in the the statute declaring text of by lem issues, very constitutional at the serious subchapter provisions of this “[t]he that text, statutory stated least. As traditionally been codify offenses have however, Act Congress believed that the This commissions. triable no posed no new crimes and thus codified not new crimes chapter does establish problem. explain facto post ex As we enactment, but not exist before its did below, premise incorrect. Congress’s those crimes for trial rather codifies does new war codify The statute some 3(a), 120 Stat. military commission.” crimes, ter- including The Act continued: “Because facto question post The for ex rorism. (including this provisions subchapter this: If had known Congress purposes incorporate provisions that definitions new codifying Act was some law) provisions are declarative crimes, other Congress have wanted would law, they do trial for existing preclude retroactively? not crimes to be enforced new with, reveals a begin statutory that occurred before the date text crimes To (i) link Congress’s causal between chapter.” tight Id. enactment of sure, Congress community— prudent it is often give the To be not international does closely with directly, indirectly through the vehi- and the President coordinate either community pay careful judicially law—a enforce- the international cle of international Congress's war law when authoriz- of its attention to international veto over exercise able enacting those ing crimes. But simply, States war war powers. Put the United factors, realities, community, political policy and interna- in the a leader international follower, Congress authorizes tional-law considerations are not constitution- just a when incorporated I into the Article against organization or makes al constraints a terrorist thereby powers clauses and enforceable support material for terrorism war crimes such as by military courts. triable commission. in U.S. war crimes 1248 821, § that the statute codified crimes 10 at the

belief U.S.C. time he committed (ii) Congress’s pre-existing law and under the conduct.7 that the statute could therefore statement B to conduct before enactment. That apply Congress suggests link that would causal enactment of Before Com applied not have wanted new crimes to 2006, Act in com missions U.S. retroactively. The Branch Executive prosecute missions could war under crimes of agrees interpretation with that the stat § 821 for violations of the “law ute, incorporated stating: “Congress ex of The that at suggests war.” Government facto post principles into the terms of the 1996to time of Hamdan’s conduct from MCA itself.” Brief for the United States material violat terrorism minimum, at At a know that the 66. we ed the “law of war” in 10 referenced statutory contemplate text does not or ad § It U.S.C. 821. is true that in the text of possibility retroactively apply of dress Commissions Act of crimes, leaving new at least ing us with Congress declared its belief something ambiguity. of an And courts terrorism was a pre-existing ambiguous interpret statutes to avoid seri crime under the law of war and thus under questions unconstitutionality. ous of See 3a, § § 821. U.S.C. See at Stat. States, Rapanos v. United U.S. exercising 2624. But independent our re (2006) 2208, 165 L.Ed.2d view, as must when the ex considering we J.) (constitu Scalia, (plurality opinion of law, post implications facto of a see new tional avoidance where “raises dif statute Bull, Calder v. 3 U.S. 3 Dall. questions” constitutionality); ficult (1798) Chase, J.); (opinion L.Ed. 648 Leavitt, Nation v. Cherokee Oklahoma Madison, 137, 1 Marbury 5 U.S. Cranch 161 137, (1803), 2 L.Ed. 60 we conclude other (2005) (avoiding interpreta L.Ed.2d 66 wise. Material for terrorism was Constitution”). “may tion that violate the not a war crime under the law war prospect To an Ex Post Facto avoid in 10 referenced time U.S.C.. at the here, Clause violation we the Mil interpret of Hamdan’s conduct. itary Commissions Act of 2006 so that it Analysis begins by of this prosecution not issue does authorize retroactive determining body what encom for conduct of law is committed before enactment of passed in that Act unless term “law of already the conduct was war” prohibited existing prec under law 821. The as a Court’s triable us: crime commission. edents tell The “law of war” refer case, therefore, In this Hamdan’s convic enced in 10 U.S.C. 821 is the interna tion or falls stands on whether his conduct tional law of war.8 See prohibited by statute, (act pre-existing at (plurality) 126 S.Ct. 2749 is law clear, Obama, 7. To be we do not here decide whether law. See Al-Bihani v. 5- 619 F.3d might apply (Brown, or how the Ex Post (D.C.Cir.2010) J., Facto Clause concurring statute, interpret to this case. As we banc); rehearing denial of en id. 9-23 question ultimate constitutional need not be J., (Kavanaugh, concurring in denial re- decided. banc). hearing Bui interpretive en issue implicated Congress is not this case. As suggested It has been that courts should not done, explained has often and as an Al- free-floating international law use as a tool to concurrence, Congress explicitly Bihani here alter how the courts would otherwise inter- explicitly referred to international law and pret a domestic U.S. statute when statute incorporated international norms domes- into incorporate does international refer

1249 agreement of war offense when enemy individuals.”); “universal as well as of see also both in practice country and and inter- Instructions for the Government of Armies such) (internal nationally” recognize it as (Lieber of the United States in the Field omitted); id. at quotation 610, marks 126 Code), 100, General Orders No. arts. 27 & (analyzing S.Ct. 2749 international sources 1863) 24, (Apr. 40 (describing the law of to determine whether conspiracy was “rec- nations”); war as a “branch” of the “law of war”); id. ognized violation of the law of at O.L.C. Memorandum from Patrick F. Phil- 641, J., (Kennedy, 126 S.Ct. 2749 concur- (Nov. 2001) 6, bin to R. Alberto Gonzales 5 (“the ring) law of war” referenced in 10 (“laws of war” are part “considered a of § pre- U.S.C. 821 “derives from rules and ”); id. at 29, the ‘Law of Nations’ cepts of the law of nations” and “the (“the 2 term ‘law of war’ used in 10 U.S.C. body governing of international law armed § 821 refers to the body same of interna- conflict”) (internal quotation marks omit- usually tional law now referred to as the ted); Quinn, 317 U.S. at 63 2 S.Ct. ”).9 ‘laws of armed conflict’ (“law of referenced in 10 war” turn, then, question We to the whether § law”); 821 is a “branch of international for terrorism is an inter- (The id. 2 S.Ct. “law of war” is national-law war crime. part “that of the law of nations which prescribes, war, for the conduct of It is true that international law status, rights and duties of nations establishes at least some forms of terror- § precedent tic U.S. law in 10 U.S.C. generally means of refers to the interna- express Kinsella, cross-reference to the "law of tional law of war. See Madsen v. J., (Kavanaugh, 341, 354, war.” See id. at 13-15 96 L.Ed. 988 banc) concurring rehearing (1952) in denial of en (The part "law of war” includes that of distinction). (explaining that "the law of nations” pow- which "defines the belligerent powers.”); ers and duties of Prize Cases, Bradley 9. See also Curtis A. & Jack L. Gold- 2 Black 17 L.Ed. smith, Validity (1863) ("The war, Military The Constitutional laws of as established Commissions, (2002) Bag nations, 5 Green 2d among have their foundation in rea- ("As above, Military son, noted President Bush’s mitigate and all tend to the cruelties and Order, 10 U.S.C. war.”); misery produced by scourge precedent jurisdiction all indicate that the (UCMJ) Hearings on H.R. 2498 the H. Before (at least) Comm, commissions extends to vio- Servs., Cong. on Armed 81st war.”); lations of the international laws of (1949) Brooks, (Representative Overton Newton, Maj. Michael A. Continuum Crimes: Chairman, House Subcommittee No. 1 on Foreign Jurisdiction Over Nationals Armed Services: “What is a law of war?” " Crimes, Who Commit International 153 Mil. L. Colonel John P. Dinsmore: 'Law of war’ is (1996) ("Therefore, scope the entire Rev. set out in various treaties like the Geneva history jurisprudence and American com- supplements Repre- convention and to that.” pel grants juris- conclusion that Article 21 sentative Brooks: "International law.” Colo- diction over violations of the internation- “Yes,sir.”); nel Dinsmore: U.S. Jag, Army Law al laws of war. The text of Article 21 leads ed., (Maj. of War Handbook Keith E. Puls conclusion.”); Wedgwood, the same Ruth Al 2005) (identifying “customary international Qaeda, Terrorism, Commissions, is, law”—that "the 'unwritten' rules that bind (2002) ("This 96 Am. J. Int’l L. community all members of the of nations” statutory language" in 10 U.S.C. 821 "ac- during major one of the two sources of knowledges jurisdiction that the war, along law with conventional inter- commissions is defined the norms of the law); national Manual for Courts-Martial nations, customary namely, law of the law of (“The (2012) at 1-1 sources of States, United war.”). militaiy jurisdiction include the Constitution Even outside the context of and international law. International law in- war.”). the term “law of war” in the Code cludes the law of 1250 a crime. See for terrorism as war targeting of intentional

ism, including 604, See, Hamdan, at 126 S.Ct. 2749 crimes. 548 U.S. as war populations, civilian Relative to Geneva Convention (plurality); of the International e.g., Rome Statute 1998, 8(2)(b), 17, in Time July of Persons the Protection Civilian art. Court Criminal (Geneva 12, 1949, IV), 90; Aug. Rel- Convention of Geneva War 2187 U.N.T.S. 287; 3516, Hague Persons Con- Protection of Civilian 75 U.N.T.S. ative to the U.S.T. (Geneva IV), 33, (IV) Aug. art. the Laws and Respecting of Time War vention 287; 3516, Annex, 12, 1949, 75 U.N.T.S. Land and Its 6 U.S.T. of War on Customs 18,1907, 2277. 36 Stat. Responsibilities, Oct. Confer- of Commission of Laws Paris Violation ence of customary international law does Nor (Clarendon Press War and Customs for ter make material otherwise 1919) (the condemned Ger- Allied Nations Customary interna a war crime. rorism system of of a many for “the execution law; it law is a kind of common tional I). after World War terrorism” legal princi body is the of international material here is whether But the issue to reflect the consistent ples said is an international- terrorism practice of nations. See Restate settled The answer is no. Inter- law war crime. Foreign (Third) Relations Law ment it to nations leaves individual national law 102(2) (1987) States United support for terrorism material proscribe to (“Customary international law results they laws if so their domestic under practice of general a and consistent pro- There is no international-law choose. a sense of states followed them from support for terrorism. scription of material It often difficult to legal obligation”). customary in determine what constitutes with, there are no relevant begin To law, customary who defines ternational that make material international treaties law, firmly and how estab international recognized interna- support for terrorism qualify as a lished a norm has be Hague war crime. Neither the tional-law customary international law norm. nor the Geneva Conventions— Convention Cf. Alvarez-Machain, v. 542 U.S. major that are “the treaties on Sosa the sources (2004).10 acknowledge material 124 S.Ct. 159 L.Ed.2d the law of war”— law, time, customary imprecision of cus- Although in- At the same international tomary significant customary international law calls for cluding the international law of war, permitting civil prohibitions caution U.S. courts before contains some well-defined core, liability premised customary criminal on violation of at the the contours of inter- or vague prohibition. imprecise. imprecision Sosa national law are That such Alvarez- Cf. Machain, S.Ct. provides good Congress and the reason (2004). Executive, general prohibition they L.Ed.2d 718 A when want to outlaw viola- norms, against "international law” or perceived violations of tions of international-law conduct, outlawing specific "law nations” the "law of war” enact statutes provide prohibiting the fair notice simply than violation of fail in certain cases rather vague of the rule of law in the something as "international law” or that is foundation Therefore, as the law nations” or the "law of war.” United States. "the statutes, analogous many required in an context in Congress has done so in recent Sosa, plurality suggested in Ham- including Act and as the Commissions dan, 109-366, imposing liability on the basis of a viola- 120 Stat. 2600 2006. Pub. L. No. (2006). the "law of tion of "international law” or See also War Crimes Act of 2104; 104-192, generally the "law of war” must L. 110 Stat. Torture nations” or Pub. No. firmly grounded in inter- based on norms Victim Protection Act of Pub. L. No. 724-38, Sosa, (1992); Foreign 542 U.S. at Sover- national law. See 106 Stat. 2739; Hamdan, eign 602-03 Act of Pub. L. No. 94- Immunities (plurality). & n. 90 Stat. 2891. war”). here, customary But the content of in- Nor is the offense of sup- quite law is evident. Material port ternational for terrorism listed the JAG hand- support recognized for terrorism was not a Army book on the law of war. See U.S. of violation the international law of war as (Maj. Keith E. Jag, Law of War Handbook (or matter). today, even for that of ed., 2005); Elsea, Puls see also Jennifer K. noted, As we have the Geneva Conventions The Commissions Act 2006: of Hague prohibit and the Convention do not Analysis Procedural Rules and Com- of support material for terrorism. The 1998 parison with Previous DOD Rules and the Rome Statute of the International Crimi- Code Justice 12 Uniform Court, catalogues nal which an extensive (CRS, 2007) updated Sept. (“defining crimes, list of international war no makes aas war crime the support ‘material mention of support material for terrorism. appear terrorism’ does not supported See Rome Statute of the International (footnote precedent”) historical omit- Court, July Criminal 2187 ted). U.N.T.S. Nor does the Statute of the short, major neither the conventions International Tribunal for the Former Yu- on the prominent law of war nor modern goslavia, the Statute the International international leading tribunals nor interna- Rwanda, Tribunal for or the Statute experts tional-law have identified material Special Court Sierra Leone. See Stat- support for terrorism as a war crime. ute International Tribunal for the Perhaps telling, case, most before this no Yugoslavia, Former adopted by S.C. Res. person has ever been tried an interna- (1993), Doc. reprint- U.N. S/RES/827 tional-law war crimes tribunal for material 1159, 1192; ed in 32 I.L.M. Statute of the support for terrorism. Rwanda, International Tribunal therefore, Not surprisingly, even the adopted by S.C. Res. U.N. Doc. U.S. Government concedes this case (1994), reprinted in 33 I.L.M. S/RES/955 support material for terrorism is not a (includes 1598, 1602 terrorism itself as a recognized international-law war crime. crime); Statute the Special Court for treaty No that the Government has cited 3(d), Sierra Leone art. Jan. or that we are aware identifies material (same). any U.N.T.S. 138 Nor have inter- support for terrorism as a war crime. exercising national tribunals common-law- And the Government further admits: The type power determined that material sup- “offense of providing port for terrorism is an international-law terrorism, like spying aiding and the ene- war crime. my, has recogni- not attained international Commentators on international law have tion at this time as a violation of customary similarly explained that material support international law.” Brief for the United for terrorism is not an international-law 48; (same). States at see also id. at 55-56 See, e.g., war crime. Andrea Bianchi & sure, To be a strong argument there is Naqvi, Yasmin International Humanitarian (2011) (“there that aiding abetting recognized in- Law and Terrorism proscription little evidence” that a of “ma- crime ternational-law war such as terror- terial for terrorism” is “considered ism is itself international-law war crime. part to be of the laws and customs of And there are other similar war crimes. case, grounding ing. asserted norm has no law, ground- in international much less firm subject separate to a branch aiding with commission charged But Hamdan law, not the kind of law-of-war other simi- or some abetting terrorism at issue here. As military commission with ma- charged He was lar war crime. suggested, precedential their have And as others for terrorism. terial limited. See value is therefore aiding and acknowledges, Government 2749; id. at 596 n. con- 548 U.S. different prohibits abetting terrorism (The (plurality) 126 S.Ct. 2749 duct, require- mens rea different imposes during convened “military commissions causation stan- ments, different and entails at once as mar- functioned the Civil War support for terrorism. than material dards tribunals military government charge Ham- tial law or wanted to If the Government Accord- law-of-war commissions. and as abetting terrorism aiding with and dan war crimes and they regularly tried sufficiently ingly, crime that was other war some (citation (and omit- ordinary together.”) crimes in international law of war rooted 821) ted). Third, most to the perhaps and § at the by 10 U.S.C. thus covered that cases do not establish conduct, point, have those it should time of Hamdan’s for terrorism was war support material so. done international law recognized crime under to a latches on The Government to 2001 when Hamdan commit- as of 1996 precedents Civil few isolated conduct, in- which is the relevant ted his prop up era to its assertion War § 821. The Gov- quiry under pre was a support for terrorism material those Civil War ernment contends purposes war crime as of 2001 for existing it calls the precedents illuminate what § in There are several of 10 U.S.C. of war”—not the inter- “U.S. common law cases fail to dependent reasons those statutory national law of war. But the argument. support the Government’s by 10 imposed constraint here U.S.C. First, cases did not involve the Civil War law of war. As 821 is the international for ter charges support of material any the Government told Instead, several cases involve rorism. Quirin, law of war’ is a “This ‘common taking up punished who were guerillas body largely unwritten centuries-old is, for direct “insurgents” “arms” —that of international law principles rules and support. than material attacks rather governs the behavior of both sol- which See, 15, HQ, Dep’t No. e.g., G.O. war.” during diers and civilians time of 3, 1862), II, (Apr. 1 OR ser. Mississippi 29, Qui- Brief for the United States at “join were convicted of 472-76. Others rin, add- (emphasis aiding assisting a band robbers ing, ed) (citation omitted). sure, To be words, what we and bandits”—in other in- may inform the content of precedents likely aiding abetting, call would law. But those Civil War ternational 19, HQ, Dep’t material G.O. No. support. sup- fail material precedents to establish 24, 1862), 1 Mississippi (Apr. OR a war crime under port for terrorism as short, II, In prece ser. at 478. those of war as of 1996 to the international law murky guidance dents are at best here. admits 2001. And even the Government 548 U.S. at Cf. for terrorism was that material un (plurality) (requiring “plain war crime as of not an international-law Second, ambiguous” precedent). those 1996 to 2001. mili part Civil War commissions were short, support for terrorism territo tary governing tribunals certain war crime not an international-law separate form of was ry are —which the time cases long presumed under U.S.C. 821 at have existence in the relevant conduct. engaged collateral consequences”). The Government

concedes, contends, as Hamdan’s counsel that it cannot possibility” show there is “no Because we read the Commis- Hamdan’s conviction will have a collateral Act not retroactive pun- sions to sanction legal consequence for him. The parties’ crimes, and ishment for new because mate- mutual desire to the court have decide this pre- rial for terrorism not a moment, case on its of no merits is howev- existing war crime under er; an Article III has an “indepen- court material support Hamdan’s conviction for dent obligation juris- to be sure [it] ha[s] for terrorism cannot stand. We reverse diction,” Wireless, FCC, High Plains LP v. of the decision of the Court Com- (D.C.Cir.2002), 276 F.3d which Review and that Hamdan’s mission direct requires here us to determine whether the for material for terror- conviction case appeal. has become on moot be vacated. ism ordered. So A criminal may conviction and often does have consequences beyond penal- the GINSBURG, Judge, Senior Circuit Sibron, imposed ties in the sentence. concurring: the Court held the defendant’s of appeal moot, his but, conviction not join I the the Court was even though decision of with respect to its his holding appeal expired during Mr. Hamdan’s sentence had pen- the by military his criminal conviction com- dency of the appeal, because that convic- moot, is not I so mission do because tion, undisturbed, left could increase his so I write precedent separately dictates. if sentence he were later to be convicted of explain the unfortunate state of that another crime. 392 U.S. at 88 S.Ct. precedent, requires which us to review the 1889; accord States v. Morgan, United long conviction of a man since transferred 502, 512-13, U.S. 74 S.Ct. 98 L.Ed. who, to Yemen even if his conviction were (1954) the (“Although term has been it, overturned and he were hear of served, may the results conviction any way by not be would affected the persist. Subsequent may convictions car- today’s result. Because decision has no ry penalties”). Similarly, heavier in Cara- consequence Mr. actual his LaVallee, v. 391 U.S. 88 S.Ct. fas fact, though, is moot in curiously, case (1968), 20 L.Ed.2d 554 the Court in law. continuing disability concluded that a civil “presumes”

The the ap- conviction, stemming from a criminal such of a peal criminal conviction is not moot as a bar to in state voting elections or to possi- unless “it is shown that there is no serving juror, keeps as a also a criminal bility any legal collateral conse- appeal becoming from moot. Even an ad- will on quences imposed the basis of the verse immigration consequence, including challenged Sibron v. conviction.” New States, a re-entering may bar on United York, 40, 57, 88 S.Ct. 20 suffice to keep a case alive and hence to (1968); L.Ed.2d 917 see United States v. See, preserve appellate jurisdiction. e.g., —Male, -, Juvenile Hamdi, United States v. F.3d (2011) (per 180 L.Ed.2d (2d Cir.2005). curiam) (“When challenges the defendant conviction, underlying Although, considering this challenge his Court’s mandatory ex- subject permanent him conviction,* [has] “the Court criminal the States. See United exis clusion the actual into inquiry all abandoned (V). 1182(a)(3)(B)(i)(D, its For consequences collateral specific tence Hamdan’s claims ],” part, the Government they exist[ presumed in effect him to an enhanced expose conviction Sibron, a new he commits if in the future sentence alleged if the col is rebutted presumption in a therefore civilian and is tried a offense foreclosed as are consequences lateral States. See Greiner, military court of United 296 or In Perez of law. matter Dep’t Defense, (2d Cir.2002), Circuit the Second MilitaRY MaNüal F.3d 1001(b)(1)(A) (2010) Rule Commissions, a criminal appeal moot the direct held (“The may introduce [in counsel “no trial there was ground on conviction [prior] evidence sentencing proceeding] defendant] [the possibility convictions, foreign or civilian consequences on collateral will suffer accused”); domestic, conviction,” id. at challenged basis of 3553(a)(1) (sentencing court shall consid- had been in that case The defendant history characteristics of er “the was heard appeal deported when his defendant”). collateral conse- The adverse country be ineligible to reenter is foreclosed quence raised conviction. With of an earlier cause law. The adverse collateral a matter of barred from “permanently defendant is posed by the Government consequence the separate ground, wholly a country on of the application the so far-fetched that [could] ... conviction currently challenged in case risks mak- presumption his admissi Sibron on meaningful no effect have merely advisory. ing opinion a our serve as not] bility [could and hence consequence.” Id. possible collateral immigration consequence The adverse a impossible is as alleged Hamdan already Hamdan is matter of law because point each the Government Hamdan from the mandatory exclusion subject to of Hamdan’s consequence collateral to a whether his con regardless conviction United States his Hamdan claims conviction. Immigration and The makes viction stands. terrorism material for ” * Sibron)). (quoting Spencer v. Kem- reading viction’ Contrary of the relevant to the Court’s na, Supreme Court Op. at S.Ct. 140 L.Ed.2d precedents, Ct. 523 U.S. Obama, review of distinguish direct (1998), not between does F.3d and Gul v. a collateral attack criminal conviction a (D.C.Cir.2011), did habeas cases that were conviction, by way petition of a a criminal on presumption, apply the but Sibron corpus or otherwise. The a writ of habeas presumption de- inapplicability did not of the occasions, has, in- Supreme Court on several direct re- pend upon a distinction between applies in a presumption the Sibron dicated petitioner Spencer, the view and habeas. In post-conviction re- proceeding for collateral but rath- challenged not a conviction criminal LaVallee, See, e.g., v. lief. 234, Carafas Gul, parole. of his er the revocation (1968) 20 L.Ed.2d 554 criminal convic- petitioner challenged not a convic- (holding challenge to criminal habeas designation as an rather tion but his conse- due "collateral not moot tion merely rested decision combatant. Neither Williams, conviction); v. quences” of Lane in upon ground case sounded habeas. 71 L.Ed.2d view of the mat- present Court’s different The J., (“The (1982) (Marshall, dissenting) however; moment, explained ter is of no corpus majority recognizes in habeas below, unfortunately binding precedent but convictions, 'is challenges the case to criminal presump- unambiguously the Sibron dictates possibility is no if it is shown there moot of a applies to the direct review criminal tion legal consequences will be any collateral conviction, presents Hamdan here. challenged such as con- imposed on the basis of (INA) provides: “Any much proof Naturalization Act standard of more favorable to in a engaged alien who ... has terrorist the Government than does a com mission, 1229a(c)(2) compare ... activity inadmissible.” (“In 1182(a)(3)(B)(i)(I). proceeding deciding The Government [for whether evidence, admissible,] provided overwhelming none an alien is the alien has the dispute, which ... establishing Hamdan bothers demon burden the alien is clearly ac strating engaged beyond that he “terrorist doubt entitled to be INA, admitted”), (4) (in meaning tivity” within the with 10 U.S.C. 949Í provision sup military including the material commission “the of proof burden port The INA makes guilt terrorism.* to establish the of the accused be yond Hamdan inadmissible not for his convic upon reasonable doubt is the Unit tion, reverse,* States”), we but which rather ed would find fact having knowingly supported provided any terrorist ac had not types of the five tivities, a historical fact we reverse. cannot for which he was con Peck, (6 Cf Fletcher victed and therefore be admitted to . Cranch) (1810) (“The 3 L.Ed. 162 the United States.* Because Hamdan is past already cannot be recalled most abso barred from entering the United power”). lute Nor is it conceivable that due to past States his involvement in ter court, rorism, which immigration applies his current conviction has no in * tion); 51,088, 51,089 (Oct. "[e]ngage The Reg. INA defines terrorist activi- 66 Fed. 2001) ty” committing (redesignation). "an include act knows, know, reasonably actor should af- * Although we reverse Hamdan’s criminal con- fords material ...: support, viction for material we do so not for lack of evidence rather but because the (aa) Mili- of a for the commission terrorist activi- tary Act Commissions of 2006 does not au- ty; prosecution thorize retroactive for an act that (bb) knows, any to individual who the actor was not criminal when done. There is no know, reasonably or should has commit- comparable prevents retroactivity bar to plans activity; ted to a commit terrorist attaching the Government from to those same [or] immigration consequences. adverse acts See (cc) organization [desig- to a terrorist ... Bonds, Marcello v. 349 U.S. nated as the Secretary such of 757, (1955) ("the prohibition 99 L.Ed. 1107 of State] post ex apply the facto clause not does to 1182(a)(3)(B)(iv)(VI). Id. A com- deportation”). mission, Convening Authority, the the * Court of Commission Review each statutory In addition to that basis Ham separately beyond found a reasonable doubt exclusion, permanent dan’s Hamdan would provided gen- physically be country not able to re-enter the Qaeda, erally specifically to al for an act inclusion, because of his automatic as a for by, among things, serving of terrorism other detainee, Fly mer Guantanamo the 'No on as bodyguard Osama bin Laden’s driver and See 44903(j)(2)(C)(v); List.’ cf. knowledge from 1996 to with the Ham- Obama, (D.C.Cir.2011) Gul v. F.3d Qaeda” protecting dan "was the leader of al (former flights detainees are "barred from "facilitating and was communication and entering regardless the United States whether terrorism,” planning used for acts of United they unlawfully a court declares were de F.Supp.2d States v. granting An a tained. order detainee’s habe (C.M.C.R.2011); id. exoneration, see also at petition as would not mean his Qaeda designated 1323. Al has been as a nor would it be a he determination does not interests; "foreign organization” by terrorist pose the State a threat to American it would Department Designation since See only prov mean that the Government has not Foreign Organizations, Reg. likely Terrorist 64 Fed. en detainee than not 'materi the more ” 55,012, 55,012 (Oct. 8, 1999) (initial terrorism). designa- supported]' ally consequences admissibility hypothetical sentencing upon his

eremental effect consequence parole defendant’s revocation were held immigration and hence the keep being case from as a basis insufficient to his proffers cannot serve he Gul, consequences spec- 19- are jurisdiction. 652 F.3d at moot because such our Cf. (where Bay, depend upon ulative and future unlawful at Guantanamo detention holdings conduct the defendant. Both designation as combat rather than they ant, inadmissibility, categorical; depend im were did at is ground the challenge upon particular proba- to all the defendant’s consequence of migration Therefore, recidivating. speculative bility to the the de- designation “too sustain crimes, apprehension, future jurisdiction”). fendants’ exercise of our equally speculative conviction were in both consequence The other collateral unclear, therefore, entirely It cases. is alleged preposterously the Government’s is the hypothetical sentencing how conse- hypothetical of an enhanced sen- prospect quences parole of a revocation could be too is in the convicted tence if Hamdan future finding of speculative to collater- committing anoth- in the States for United consequences, hypothetical al while the Court held er crime. The sentencing consequences of a conviction hypothetical the future sen- Sibron that enough could concrete and certain to tencing sup- to enhancement sufficient presumption of collateral con- conviction port presumption sequences, jurisdic- and hence Article III being will collat- appealed have adverse tion, appeals. in all criminal consequence keep eral and hence to Sibron, Nonetheless, appeal being precedent moot. “[i]f [the cases, Supreme] has in a Subsequent application 88 S.Ct. 1889. Court direct case, however, upon continuing yet reject- cast doubt on appears rest reasons validity decisions, applied this case. in some other line of Sibron ed Spencer v. of Appeals Kemna Court declined Court should follow the case controls, presumption ap- directly leaving extend the Sibron to the which Su- [the peal parole any overruling of a revocation preme] prerogative because consequence Quijas collateral in a own Rodriguez future sentenc- its decisions.” de Inc., ing contingent upon Express, [the “was defendant Shearson/Am. law, again] violating getting caught, 104 L.Ed.2d 526 (1989). and being Accordingly, convicted.” 523 U.S. because Hamdan’s (1998); appeal S.Ct. also case is a his L.Ed.2d see direct criminal Williams, Lane v. 633 n. conviction rather than review of parole a (1982) Spencer, 71 L.Ed.2d 508 revocation in the S.Ct. as (“The parole part ap- violations that remain a bound to hold the presumption Sibron affect a and respondents’ plies hypothetical records cannot therefore the future subsequent consequences re- parole sentencing determination unless of Hamdan’s con- law, spondents again keep are re- appeal violate state viction are sufficient to his turned prison, eligible being to and become from moot. parole. Respondents are themselves Finally, although an I note that this is pre- indeed required able—and law—to conviction,” “appeal of a criminal we have possibility occurring”).

vent such a from strayed territory far from familiar is, although

That progeny, in Sibron a conviction Sibron and its which deemed sen presumed tencing moot consequences have adverse conse- the antidote to in quences in a future ness. criminal each of defendant The conviction hypothetical regularly in a sentencing, Spencer those cases was entered court, civilian and the criminal constituted America, in a prison Appellee

defendant served time domestic UNITED STATES of sovereign into being before released such, territory of the States. United As subject

upon release the defendant was his Gregory TERRELL, Appellant. the United the criminal laws of States and of the State in which he was located. No. 07-3054. being common

Recidivism United of Appeals, United States Court States, unfortunately it is reasonable to District of Columbia Circuit. such a suppose may again defendant be a state violating convicted or federal Argued Sept. 2012. contrast, law.* Hamdan is By presumably certainly in Yemen and is not in Unit Decided Oct. States; shows, so far ed record he United nor has never entered the States so;

expressed any to do he is desire

barred, legally physically, both result,

entering the United As a States. possible sentencing future conse

quence his com conviction through would be

mission extraterritorial

application of our criminal law to a federal committed, yet through

crime prosecution com

successive

mission for a future violation the law is, least, say

war. It far more

speculative may that Hamdan himself find being

again sentenced in the United States

than it is domestic criminal recidi

vate find before a himself domestic

criminal court.

* Guantanamo, Recidivism rates of convicts released from 599 detainees released from prisons in the United States are well-known again detained and "confirmed of reen- 4.7% substantial. See Dep’t gaging” nine-year a period). hostilities over Justice, Bureau Statistics, Presuming of Justice Recidivism of Prisoners consequences that collateral arise 2002) (June (using in 1994 1 sam- Released by military from conviction commission 272,111 states, ple prisoners former in 15 violating persist law war after study showed were convicted of anoth- 46.9% foreign country, the convict is released into a release). years er within Re- offense three therefore, Gul, hardly justified. seems Cf. among rates cidivism Guantanamo detainees ("not[ing] F.3d at 17 detention at Guantana- comparatively speculative, are but insofar as designation mo and combatant known, they are are rather modest. See Di- phenomena; [therefore are recent a court] Intelligence, Summary rector of National inferring they routinely no basis for ha[s] Reengagement Formerly Detainees Held consequences”). have collateral (March 1, 2012) (of Cuba Bay, Guantanamo

Case Details

Case Name: Salim Hamdan v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 16, 2012

Citation: 696 F.3d 1238

Docket Number: 11-1257

Court Abbreviation: D.C. Cir.