Abstract
On June 24, 2011 the Court of Military Commission Review (CMCR) released its decision in the case of <i>U.S. v. Hamdan</i>. The issue before the court was whether material support for terrorism (MST) constitutes a law of war violation. The CMCR answered in the affirmative.
This thesis argues that the charge of MST is not a violation of the law of war, and the CMCR's holding should be reversed by the Court of Appeals for the D.C. Circuit when the Court hears oral arguments on 3 May 2012.
This thesis further contends that to truly understand the charge of MST one must view it in the larger context of the nation's initial response to the attacks of 9/11. That response is encapsulated in the Bush Doctrine, a sweeping pronouncement that the U.S. will make no distinction between those who aid terrorists and the terrorists themselves. The Bush Doctrine was legally and theoretically codified in the Authorization for the Use of Military Force (AUMF) and the President's November 13 Military Order authorizing detention and trial by military commission of non-U.S. citizens.
MST can be viewed as the consistent logical continuation of the Bush Doctrine. Both MST and the Bush Doctrine seek to impose liability on a third party, provided that party possesses a "permissive"<i>mens rea</i>, and performs some act falling within the broad ambit of material support. Liability is imposed regardless of whether the assistance intended to further a terrorist act. We have therefore made guilt by association the linchpin of the War on Terror's strategy.
The Obama Administration has largely accepted the theoretical underpinnings of the Bush Doctrine while endorsing a bifurcated approach to military commissions. Unfortunately, bifurcation has not received bipartisan support. This lack of bipartisan support is manifested primarily in the 2012 National Defense Authorization Act, which precludes prosecution of detainees currently held at Guantánamo in the federal courts.
After two acts of Congress, a Supreme Court Decision, and an executive review, the military commissions system is at long last a fair and transparent form of justice. Nevertheless, by continuing to charge suspected terrorists with MST before military commissions, we not only threaten hard-won convictions but renew questions about the system's legitimacy.
As Article I courts of limited jurisdiction, military commissions derive their authority from Congress' enumerated power to define and punish violations of the law of nations. Were a military commission to try a crime other than a law of war violation, it would overreach its special jurisdiction. That is precisely what has occurred. Congress has impermissibly created, rather than merely defined, a violation of existing international law and the CMCR has sanctioned Congress's overreaching in its <i>Hamdan</i> decision.
The CMCR's holding that MST constitutes a war crime rests on a subtle, yet fatal error. In its decision, the court conflates mere criminal acts with war crimes. Notwithstanding the CMCR's holding, the charge of MST cannot be said to constitute a violation of the laws of war. Therefore, military commissions have no jurisdiction over the charge. As military prosecutors continue to level the charge they continue to comprise commissions' credibility and defer total redemption.
Note: Abstract extracted from PDF file via OCR.
