An Ex Post Facto Violation? Osama bin Laden’s Driver Convicted Under 2006 Military Commissions Act for Activities Conducted in 2001?

An Ex Post Facto Violation? Osama bin Laden’s Driver Convicted Under 2006 Military Commissions Act for Activities Conducted in 2001?

A military commission convicted appellant of five specifications of providing material support for terrorism in violation of the Military Commissions Act (MCA), 10 U.S.C.S. § 950v(b)(25) (2006).  Appellant sought review contending that the military commission lacked subject matter jurisdiction and that he was convicted in violation of the Ex Post Facto Clause and the Fifth Amendment.

As established by the trial court record, appellant, an alien unlawful enemy combatant, joined al Qaeda, the terrorist organization, with the knowledge that al Qaeda engaged in terrorism.  Sometime around 1996, appellant began operating as Osama bin Laden's (bin Laden) personal driver and bodyguard.  Appellant pledged "unquestioned allegiance" to bin Laden.  On numerous occasions, appellant "delivered requests for logistical support, including weapons and ammunition, to al Qaeda's logistical officer."  Prior to September 11, 2001, bin Laden told appellant they were evacuating the compound in which they lived because of a scheduled operation.  The day after the September 11 terrorist attacks, bin Laden confirmed to appellant that he was responsible. 

Within the week after the attacks, Congress passed the Authorization for Use of Military Force resolution.  The resolution authorized the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks."  In November 2011, the United States and allied armed forces, which were involved in military operations in Afghanistan, arrested appellant.  Appellant was turned over to the United States military, which transported him to the military detention facility in Cuba.  Appellant was held there until he was transferred to Yemen in October 2008.

Appellant claimed a violation of the U.S. Constitution's Define and Punish Clause, art. I, § 8, cl. 10.  Appellant argued that Congress exceeded its authority when it established providing material support for terrorism as an offense under the 2006 MCA.  In rejecting appellant's argument, the United States Court of Military Commission Review (CMCR) held that "provided their actions are taken respecting the Constitution, the President and Congress have broad discretion when acting during an ongoing conflict in the areas of war powers, foreign relations, and aliens." 

The CMCR also determined that it was not appellant's conduct in isolation that constituted a law of war violation triable by the military commission.  First, it was appellant's "knowledge, intent, and conduct, in support of terrorism, and in the specific context of a conflict triggering application of U.S. treaty obligations" that made appellant's actions cognizable under the 2006 MCA.  Second, appellant's conduct took place in the context of and was associated with an armed conflict.  Third, appellant had the requisite criminal intent and knowledge.  Therefore, the CMCR determined that the requirements were met to constitute clear law of war violations under the 2006 MCA. 

Finally, appellant contended that the conviction should be vacated because § 950v(b)(25) was signed into law on October 17, 2006, several years after the alleged conduct.  Consequently, appellant argued that the law was being applied against him in violation of the Ex Post Facto Clause.  The CMCR found that Congress' stated purpose for the 2006 MCA was to "codify offenses that have traditionally been triable by military commissions."  In defining and punishing providing material support for terrorism in the MCA, Congress codified offenses that traditionally were triable by military commissions.  The court stated that "Congress did not create a new offense" inasmuch as providing material support for terrorism was an existing law of war offense since 1996.  Therefore, the military commission did not violate the Ex Post Facto Clause when it convicted appellant under the 2006 MCA.

Lexis.com subscribers can access the Lexis enhanced version of the United States v. Hamdan, 2011 U.S. CMCR Lexis 1, decision with summary, headnotes, and Shepard's.

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