Salim Hamdan v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 3, 2012 Decided October 16, 2012

No. 11-1257

SALIM AHMED HAMDAN,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT

On Petition for Review from the

United States Court of Military Commission Review

Joseph M. McMillan argued the cause for petitioner.

With him on the briefs were Harry H. Schneider Jr., Charles

C. Sipos, Angela R. Martinez, Abha Khanna, Adam

Thurschwell, and Jahn C. Olson.

J. Wells Dixon, Shayana D. Kadidal, and Pardiss

Kebriaei were on the brief for amicus curiae Center for

Constitutional Rights in support of petitioner.

David C. Lachman was on the brief for amicus curiae

International Legal Scholars Terry D. Gill and Gentian Zyberi

in support of petitioner.

2

John S. Summers and Michael J. Newman were on the

brief for amicus curiae Professor David W. Glazier in support

of petitioner.

Gene C. Schaerr and Kimball R. Anderson were on the

brief for amicus curiae Constitutional Law Scholars in

support of petitioner.

Jonathan Hafetz and David Cole were on the brief for

amicus curiae Japanese American Citizens League, et al. in

support of petitioner.

John F. De Pue, Attorney, U.S. Department of Justice,

argued the cause for respondent. With him on the brief were

Lisa O. Monaco, Assistant Attorney General for National

Security, Jeffrey M. Smith, Attorney, Edward S. White,

Captain, JAGC, U.S. Navy Appellate Counsel, and Francis A.

Gilligan, Appellate Counsel, Office of the Prosecutor for

Military Commissions.

Before: SENTELLE, Chief Judge, KAVANAUGH, Circuit

Judge, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

KAVANAUGH, with whom Chief Judge SENTELLE joins except

as to footnote 6, and with whom Senior Judge GINSBURG

joins except as to footnotes 3, 6, and 8.

Concurring Opinion filed by Senior Circuit Judge

GINSBURG.

KAVANAUGH, Circuit Judge: The United States is at war

against al Qaeda, an international terrorist organization. Al

Qaeda’s stated goals are, among other things, to drive the

United States from posts in the Middle East, to devastate the

State of Israel, and to help establish radical Islamic control

3

over the Greater Middle East. Al Qaeda uses terror to

advance its broad objectives. Al Qaeda terrorists do not wear

uniforms, and they target American civilians and members of

the U.S. Military, as well as U.S. allies. After al Qaeda’s

attacks on the United States on September 11, 2001, Congress

authorized the President to wage war against al Qaeda. That

war continues.

In war, when the United States captures or takes custody

of alien enemy combatants or their substantial supporters, it

may detain them for the duration of hostilities. Moreover, the

United States may try unlawful alien enemy combatants

before military commissions for their war crimes. See Hamdi

v. Rumsfeld, 542 U.S. 507, 518-24 (2004); Ex parte Quirin,

317 U.S. 1, 26-45 (1942).

This case raises questions about the scope of the

Executive’s authority to prosecute war crimes under current

federal statutes.

This particular dispute involves the military commission

conviction of Salim Hamdan, an al Qaeda member who

worked for Osama bin Laden. In 2001, Hamdan was captured

in Afghanistan. He was later transferred to the U.S. Naval

Base at Guantanamo Bay, Cuba.

Hamdan was not just detained at Guantanamo as an

enemy combatant. He was also accused of being an unlawful

enemy combatant and was tried and convicted by a military

commission for “material support for terrorism,” a war crime

specified by the Military Commissions Act of 2006. See 10

U.S.C. § 950t(25); see also 10 U.S.C. § 950v(b)(25) (2006)

(previous codification of same provision). Hamdan’s

conviction was based on actions he took from 1996 to 2001 –

before enactment of the Military Commissions Act. At the

time of Hamdan’s conduct, the extant federal statute

4

authorized and limited military commissions to try violations

of the “law of war.” 10 U.S.C. § 821.

As punishment for his war crime, Hamdan was sentenced

by the military commission to 66 months’ imprisonment, with

credit for some time already served. Hamdan’s sentence

expired in 2008. Although the United States may have

continued to detain Hamdan until the end of hostilities

pursuant to its wartime detention authority, see Hamdi, 542

U.S. at 518-22, Hamdan was transferred in late 2008 to

Yemen and then released there. Even after his release,

Hamdan has continued to appeal his U.S. war crimes

conviction.

This appeal presents several issues. First, is the dispute

moot because Hamdan has already served his sentence and

been released from U.S. custody? Second, does the Executive

have authority to prosecute Hamdan for material support for

terrorism on the sole basis of the 2006 Military Commissions

Act – which specifically lists material support for terrorism as

a war crime triable by military commission – even though

Hamdan’s conduct occurred from 1996 to 2001, before

enactment of that Act? Third, if not, did the pre-existing

statute that authorized war-crimes military commissions at the

time of Hamdan’s conduct – a statute providing that military

commissions may try violations of the “law of war,” 10

U.S.C. § 821 – proscribe material support for terrorism as a

war crime?

We conclude as follows:

First, despite Hamdan’s release from custody, this case is

not moot. This is a direct appeal of a conviction. The

Supreme Court has long held that a defendant’s direct appeal

of a conviction is not mooted by the defendant’s release from

custody.

5

Second, consistent with Congress’s stated intent and so as

to avoid a serious Ex Post Facto Clause issue, we interpret the

Military Commissions Act of 2006 not to authorize

retroactive prosecution of crimes that were not prohibited as

war crimes triable by military commission under U.S. law at

the time the conduct occurred. Therefore, Hamdan’s

conviction may be affirmed only if the relevant statute that

was on the books at the time of his conduct – 10 U.S.C. § 821

– encompassed material support for terrorism.

Third, when Hamdan committed the relevant conduct

from 1996 to 2001, Section 821 of Title 10 provided that

military commissions may try violations of the “law of war.”

The “law of war” cross-referenced in that statute is the

international law of war. See Quirin, 317 U.S. at 27-30, 35-

36. When Hamdan committed the conduct in question, the

international law of war proscribed a variety of war crimes,

including forms of terrorism. At that time, however, the

international law of war did not proscribe material support for

terrorism as a war crime. Indeed, the Executive Branch

acknowledges that the international law of war did not – and

still does not – identify material support for terrorism as a war

crime. Therefore, the relevant statute at the time of Hamdan’s

conduct – 10 U.S.C. § 821 – did not proscribe material

support for terrorism as a war crime.

Because we read the Military Commissions Act not to

retroactively punish new crimes, and because material support

for terrorism was not a pre-existing war crime under 10

U.S.C. § 821, Hamdan’s conviction for material support for

terrorism cannot stand. We reverse the judgment of the Court

6

of Military Commission Review and direct that Hamdan’s

conviction for material support for terrorism be vacated. 1

I

In 1996, Salim Hamdan traveled from his native Yemen

to Pakistan and then to Afghanistan to participate in jihad. In

Afghanistan, Hamdan attended an al Qaeda training camp. At

the camp, Hamdan received weapons training, met Osama bin

Laden, and listened to bin Laden’s lectures.

Later in 1996, Hamdan became an al Qaeda driver. His

duties included transporting personnel, supplies, and weapons

between an al Qaeda guesthouse and al Qaeda’s al Farouq

training camp in Afghanistan. Eventually, Hamdan became

Osama bin Laden’s personal driver and bodyguard.

In August 1996, Osama bin Laden publicly declared war

on the United States. That declaration came after various al

Qaeda terrorist attacks, including the 1993 bombing of the

World Trade Center. In 1998, bin Laden issued a fatwa

calling for the indiscriminate killing of Americans, including

American civilians. Hamdan was fully aware of bin Laden’s

public statements targeting the United States.

1

Our judgment would not preclude detention of Hamdan until

the end of U.S. hostilities against al Qaeda. Nor does our judgment

preclude any future military commission charges against Hamdan –

either for conduct prohibited by the “law of war” under 10 U.S.C.

§ 821 or for any conduct since 2006 that has violated the Military

Commissions Act. Nor does our judgment preclude appropriate

criminal charges in civilian court. Moreover, our decision concerns

only the commission’s legal authority. We do not have occasion to

question that, as a matter of fact, Hamdan engaged in the conduct

for which he was convicted.

7

In August 1998, al Qaeda operatives bombed U.S.

Embassies in Kenya and Tanzania, killing 257 people,

including 12 Americans. Hamdan was generally aware that

such an attack was planned. Around the time of the attack,

Hamdan assisted Osama bin Laden in evacuating from

Kandahar and moving around Afghanistan.

Later in August 1998, asserting the President’s Article II

power of self-defense, President Clinton ordered the U.S.

Military to bomb targets in Afghanistan in an attempt to kill

bin Laden. Bin Laden narrowly avoided being killed in that

military action.

In October 2000, at the direction of bin Laden and senior

al Qaeda leaders, al Qaeda bombed the U.S.S. Cole off the

coast of Yemen, killing 17 Americans and injuring many

others. Around that time, Hamdan returned to Afghanistan

from Yemen.

In August 2001, Hamdan drove bin Laden to various

planning meetings in Afghanistan. Several days before

September 11, 2001, bin Laden told Hamdan that they had to

evacuate their compound because of an impending operation.

Hamdan drove bin Laden to Kabul. They later moved to a

series of locations around Afghanistan.

On September 11, 2001, al Qaeda attacked the United

States, killing thousands of civilians and causing massive

long-term damage to the American economy and way of life.

In the days following the attacks of September 11, 2001,

Congress passed and President George W. Bush signed the

Authorization for Use of Military Force. That law authorized

the President

8

to use all necessary and appropriate force against those

nations, organizations, or persons he determines planned,

authorized, committed, or aided the terrorist attacks that

occurred on September 11, 2001, or harbored such

organizations or persons, in order to prevent any future

acts of international terrorism against the United States

by such nations, organizations or persons.

Pub. L. No. 107-40, 115 Stat. 224 (2001).

Consistent with the 2001 Authorization for Use of

Military Force, President Bush directed the use of force to kill

or capture and detain al Qaeda operatives, and where

appropriate to try unlawful al Qaeda combatants who had

committed war crimes. On October 7, 2001, as part of the

overall operation, President Bush ordered U.S. troops into

Afghanistan to wage war against al Qaeda there, as well as

against the Taliban government that was in control of

Afghanistan and had been supporting and harboring al Qaeda.

On November 13, 2001, the President issued an executive

order establishing military commissions to try al Qaeda

members and aiders and abettors who had committed war

crimes as defined under the “laws of war” or other “applicable

laws.” Military Order of Nov. 13, 2001, 66 Fed. Reg. 57,833;

57,833-34. The executive order did not purport to rely solely

on the President’s constitutional authority; rather, it cited two

separate statutes as congressional authorization for the

President to employ military commissions: the 2001

Authorization for Use of Military Force and 10 U.S.C. § 821,

the long-standing statute that authorized military commissions

to try violations of the “law of war.”

In November 2001, Hamdan was captured in Afghanistan

while driving toward Kandahar. The car he was driving

9

contained two anti-aircraft missiles. Also in the car was an al

Qaeda-issued document that authorized the bearer to carry a

weapon in Afghanistan. Hamdan’s captors turned him over to

U.S. authorities. He was later transferred to Guantanamo

Bay, Cuba, and the U.S. Military detained him there as an

enemy combatant.

At Guantanamo, Hamdan not only was detained as an

enemy combatant but also was eventually charged with one

count of conspiracy and was to be tried before a military

commission as an unlawful enemy combatant who had

committed war crimes. 2 Hamdan raised various legal

objections to the prosecution, and the case ultimately wound

its way to the Supreme Court. The Supreme Court held that

the military commission rules then in place contravened

statutory limits because the rules did not comply in certain

respects with statutory restrictions contained in 10 U.S.C.

§ 836. See Hamdan v. Rumsfeld, 548 U.S. 557, 613-35

(2006). The Court split 4-3 on and thus did not decide a

separate issue: whether conspiracy was a cognizable charge in

a military commission under the “law of war” for purposes of

10 U.S.C. § 821. Compare Hamdan, 548 U.S. at 595-612

(Stevens, J., plurality opinion) (conspiracy is not a law of war

crime), with id. at 697-706 (Thomas, J., dissenting)

(conspiracy is a law of war crime). (Justice Kennedy did not

address that issue; Chief Justice Roberts did not participate in

the case.)

2

Generally speaking, enemy soldiers or combatants are

considered unlawful enemy combatants when they, for example,

join or support an organization waging unlawful war or they

commit specific “acts which render their belligerency unlawful.”

Ex parte Quirin, 317 U.S. 1, 31 (1942). For purposes of the war

against al Qaeda, this concept is now defined by statute. See 10

U.S.C. § 948a.

10

In the Hamdan case, several Justices specifically invited

Congress to clarify the scope of the President’s statutory

authority to use military commissions to try unlawful alien

enemy combatants for war crimes. See Hamdan, 548 U.S. at

636 (Breyer, J., concurring); id. at 636-37 (Kennedy, J.,

concurring).

In the wake of the Supreme Court’s decision in Hamdan,

Congress enacted a new military commissions statute. See

Military Commissions Act of 2006, Pub. L. No. 109-366, 120

Stat. 2600. Of particular relevance here, Congress expanded

military commissions beyond prosecuting violations of the

generic “law of war,” spying, and aiding the enemy, which

were the crimes listed by statute at the time. See 10 U.S.C.

§§ 821, 904, 906. Of most importance here, Congress

alleviated some of the uncertainty highlighted in Hamdan

about the phrase “law of war” in 10 U.S.C. § 821 by listing a

large number of specific war crimes that could be charged by

military commission, including conspiracy and material

support for terrorism. See § 3(a), 120 Stat. at 2630. (In 2009,

Congress enacted a new Military Commissions Act; that law

did not make changes relevant to this case. See Pub. L. No.

111-84, 123 Stat. 2574.)

After passage of the 2006 Military Commissions Act,

Hamdan was charged anew before a U.S. military commission

on one charge of conspiracy and one charge, containing eight

specifications, of material support for terrorism.

At his military commission trial, Hamdan was acquitted

of conspiracy but convicted of five specifications of material

support for terrorism. In August 2008, he was sentenced to

66 months’ confinement and credited for having already

served most of that time.

11

When his sentence ended later in 2008, the war against al

Qaeda had not ended. Therefore, the United States may have

continued to detain Hamdan as an enemy combatant. See

Hamdan, 548 U.S. at 635; Hamdi v. Rumsfeld, 542 U.S. 507,

518-24 (2004). But in November 2008, Hamdan was

transferred by the U.S. Military to Yemen, and he was then

released on or about January 8, 2009, in Yemen.

After his release, Hamdan nonetheless continued to

appeal his U.S. military commission conviction. On appeal to

the en banc Court of Military Commission Review, Hamdan

argued (i) that Congress lacked authority under Article I of

the Constitution to make material support for terrorism a war

crime triable by military commission; (ii) that in any event,

the 2006 Military Commissions Act, which listed material

support for terrorism as a war crime, could not be

retroactively applied to him because his conduct occurred

from 1996 to 2001; and (iii) that the statute in effect at the

time of his alleged conduct – 10 U.S.C. § 821, which limited

military commissions to violations of the “law of war” – did

not authorize prosecution of material support for terrorism as

a war crime. In 2011, the Court of Military Commission

Review affirmed the conviction. See United States v.

Hamdan, 801 F. Supp. 2d 1247 (C.M.C.R. 2011) (en banc).

By statute, Hamdan has an automatic right of appeal to

this Court. See 10 U.S.C. § 950g.

II

We must first address the issue of mootness – that is,

whether this appeal is moot because Hamdan has been

released from U.S. custody. Although the parties agree that

the appeal is not moot, mootness is a jurisdictional question

that we must independently consider. See United States v.

12

Juvenile Male, 131 S. Ct. 2860, 2864-65 (2011); Sibron v.

New York, 392 U.S. 40, 50 n.8 (1968).

This case is a direct appeal of a military commission

conviction. In the criminal context, a direct appeal of a

criminal conviction is not mooted by a defendant’s release

from custody. See Sibron, 392 U.S. 40. The Supreme Court

has so ruled in part because of the collateral legal

consequences of a conviction – namely, the possibility that

the defendant could commit or be tried for a new offense, the

punishment for which could take account of a past conviction.

Those collateral consequences are of course present in

virtually all criminal cases (other than, for example, when the

defendant has died after the conviction and thus obviously

cannot commit a new offense). The same collateral

consequences are present in military commission conviction

cases. See, e.g., MANUAL FOR MILITARY COMMISSIONS, Rules

1001(a)(2), 1001(b)(1)(A) (2012) (in military commission

sentencing, the prosecution may “introduce evidence of

military or civilian convictions, foreign or domestic, of the

accused” as an aggravating factor); 18 U.S.C. § 3553(a)(1)

(sentencing courts shall take into account “the history and

characteristics of the defendant”). 3 Applying the relevant

Supreme Court precedent, we therefore conclude that a direct

appeal of a military commission conviction is likewise not

mooted by the defendant’s release.

To be sure, that principle generally does not apply to the

habeas context where a detainee is challenging the basis for

executive detention. Such a habeas case is sometimes moot

3

In his concurring opinion, Judge Ginsburg calls for a change

to existing Supreme Court mootness doctrine. In doing so, Judge

Ginsburg suggests that Hamdan is in Yemen and has little chance

of landing in future trouble in the U.S. legal system. Maybe.

Maybe not.

13

after the detainee’s release. See Spencer v. Kemna, 523 U.S.

1, 8-14 (1998); Gul v. Obama, 652 F.3d 12, 17 (D.C. Cir.

2011). In our recent habeas decision in Gul, where a former

Guantanamo detainee objected to a military detention

determination after his release, this Court dismissed the case

as moot.

But Hamdan is not just a military detainee; he has been

convicted of a war crime by military commission. Therefore,

our recent decision in Gul does not control here. Rather, this

case is controlled by the principle that a direct appeal of a

conviction is not mooted by the defendant’s release from

custody.

This case is not moot.

III

Under a law now codified at 10 U.S.C. § 821, Congress

has long authorized the Executive to use military

commissions to try war crimes committed by the enemy. See

Ex parte Quirin, 317 U.S. 1 (1942). That statute authorizes

military commissions to try violations of the “law of war” – a

term, as we explain below, that has long been understood to

mean the international law of war. See Hamdan v. Rumsfeld,

548 U.S. 557, 603, 610 (2006) (plurality); id. at 641

(Kennedy, J., concurring); Quirin, 317 U.S. at 27-30, 35-36.

Two other longstanding statutes separately authorize military

commission prosecutions for spying and aiding the enemy.

See 10 U.S.C. §§ 904, 906. 4

4

The “aiding the enemy” proscription in 10 U.S.C. § 904,

which was first codified in the Articles of War of 1806, see

WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 102-03,

981 (rev. 2d ed. 1920), generally requires breach of a duty of

14

After the Supreme Court’s 2006 decision in Hamdan,

Congress enacted a new military commissions statute that,

among other things, clarified the scope of the Executive’s

authority to try war crimes. See Military Commissions Act of

2006, Pub. L. No. 109-366, 120 Stat. 2600. Of particular

relevance here, Congress expanded military commissions

beyond trying violations of the generic “law of war,” spying,

and aiding the enemy. Congress instead also listed a large

number of specific war crimes that could be tried by military

commission, including conspiracy and material support for

terrorism. See id. § 3(a), 120 Stat. at 2630 (now codified at

10 U.S.C. § 950t).

Hamdan argues that Congress lacked authority under

Article I of the Constitution – namely, the Define and Punish

Clause – to define material support for terrorism as a war

crime subject to trial by a U.S. military commission.5

Hamdan maintains that Congress’s authority under the Define

and Punish Clause is limited to proscribing offenses that are

already illegal under international law. And Hamdan contends

loyalty as well as aid to the enemy. See Hamdan, 548 U.S. at 600-

01 n.32 (plurality) (“aiding the enemy may, in circumstances where

the accused owes allegiance to the party whose enemy he is alleged

to have aided, be triable by military commission”). The breach of

loyalty requirement is made explicit in the 2006 Military

Commissions Act, which re-codified the crime. 10 U.S.C.

§ 950t(26) (“Any person subject to this chapter who, in breach of

an allegiance or duty to the United States, knowingly and

intentionally aids an enemy of the United States, or one of the co-

belligerents of the enemy, shall be punished as a military

commission under this chapter may direct.”) (emphasis added).

5

The Define and Punish Clause provides that Congress has the

power: “To define and punish Piracies and Felonies committed on

the high Seas, and Offences against the Law of Nations.” U.S.

CONST. art. I, § 8, cl. 10.

15

that material support for terrorism is not a recognized

international-law war crime. The Government responds that

Hamdan’s focus on the Define and Punish Clause alone is

misplaced. According to the Government, the Declare War

Clause and other war clauses in Article I, as supplemented by

the Necessary and Proper Clause, independently authorize

Congress to establish military commissions to try an enemy’s

war crimes. And the Government further contends that

Congress’s broad authority under the Declare War Clause is

not constrained by the evolving and often difficult to discern

standards of international law. Therefore, as the Government

sees it, Congress has authority to make material support for

terrorism a war crime triable by military commission.

We do not decide that antecedent question. Even

assuming arguendo that Congress had authority under its

various Article I war powers to establish material support for

terrorism as a war crime in the Military Commissions Act of

2006, 6 we conclude that the Act did not authorize retroactive

6

Judge Kavanaugh alone concurs in this footnote. Because

the question of Congress’s Article I power to make material support

for terrorism a war crime has been thoroughly briefed and argued,

because that question is logically antecedent to the ex post facto

issue, and because of the importance of deciding wartime cases in a

way that provides clear guidance, Judge Kavanaugh believes it

appropriate to address the antecedent question – as the Supreme

Court itself did in resolving similar antecedent issues in both

Hamdi and Hamdan. See Hamdi, 542 U.S. at 516-24, 533-34

(resolving several “threshold” questions, including whether enemy

combatants may be detained for the duration of hostilities, before

concluding that the procedures used to detain Hamdi were

insufficient); Hamdan, 548 U.S. at 593-94 (resolving antecedent

question whether relevant statutes generally authorized military

commissions, before concluding that the commission in Hamdan’s

case contravened separate statutory limits). Here, Judge

Kavanaugh would conclude that Congress has authority under

16

prosecution for conduct that was committed before the Act’s

enactment and was not prohibited by U.S. law at the time the

conduct occurred. Here, Hamdan’s conduct occurred from

1996 to 2001 – before enactment of the Military Commissions

Act. And as we will explain, the federal statute in effect at

the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not

authorize prosecution for material support for terrorism.

A

As is clear from the text of the Military Commissions Act

of 2006, Congress was quite concerned about the ex post

Article I, § 8 to establish material support for terrorism as a war

crime that, when committed by an alien, may be tried by military

commission. Although material support for terrorism is not yet an

international-law war crime, Congress’s war powers under Article I

are not defined or constrained by international law. The Declare

War Clause and the other Article I war powers clauses do not refer

to international law, unlike the Define and Punish Clause.

Moreover, Congress has long prohibited war crimes beyond those

specified by international law. See 10 U.S.C. § 904 (aiding the

enemy); id. § 906 (spying); cf. Quirin, 317 U.S. 1. The U.S.

Constitution does not give the international community – either

directly, or indirectly through the vehicle of international law – a

judicially enforceable veto over Congress’s exercise of its war

powers. Put simply, the United States may be a leader in the

international community, not just a follower, when Congress

authorizes war against a terrorist organization or makes crimes such

as material support for terrorism war crimes triable by military

commission. To be sure, it is often prudent for Congress and the

President to coordinate closely with the international community

and pay careful attention to international law when authorizing war

and enacting war crimes. But those policy factors, political

realities, and international-law considerations are not constitutional

constraints incorporated into the Article I war powers clauses and

thereby enforceable in U.S. courts.

17

facto implications of retroactively prosecuting someone under

the Act for conduct committed before its enactment.

Congress tried to deal with any ex post facto problem by

declaring in the text of the statute that “[t]he provisions of this

subchapter codify offenses that have traditionally been triable

by military commissions. This chapter does not establish new

crimes that did not exist before its enactment, but rather

codifies those crimes for trial by military commission.”

§ 3(a), 120 Stat. at 2624. The Act continued: “Because the

provisions of this subchapter (including provisions that

incorporate definitions in other provisions of law) are

declarative of existing law, they do not preclude trial for

crimes that occurred before the date of the enactment of this

chapter.” Id.

As Congress well understood when it appended this

unusual statement to the statute, the U.S. Constitution bars

Congress from enacting punitive ex post facto laws. See U.S.

CONST. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto

Law shall be passed.”). Among other things, the Ex Post

Facto Clause bars laws that retroactively punish conduct that

was not previously prohibited, or that retroactively increase

punishment for already prohibited conduct. See Collins v.

Youngblood, 497 U.S. 37, 42 (1990); Calder v. Bull, 3 U.S.

386 (1798) (opinion of Chase, J.). The Ex Post Facto Clause

thus prevents Congress and the Executive from retroactively

applying a federal criminal statute to conduct committed

before the statute was enacted.

As Congress itself recognized in the statutory text,

retroactive prosecution by military commission could

similarly raise serious constitutional issues, at the very least.

As stated in the statutory text, however, Congress believed

that the Act codified no new crimes and thus posed no ex post

facto problem. As we explain below, Congress’s premise was

18

incorrect. The statute does codify some new war crimes,

including material support for terrorism. The question for ex

post facto purposes is this: If Congress had known that the

Act was codifying some new crimes, would Congress have

wanted the new crimes to be enforced retroactively? To begin

with, the statutory text reveals a tight causal link between (i)

Congress’s belief that the statute codified only crimes under

pre-existing law and (ii) Congress’s statement that the statute

could therefore apply to conduct before enactment. That

causal link suggests that Congress would not have wanted

new crimes to be applied retroactively. The Executive Branch

agrees with that interpretation of the statute, stating:

“Congress incorporated ex post facto principles into the terms

of the MCA itself.” Brief for the United States at 66. At a

minimum, we know that the statutory text does not

contemplate or address the possibility of retroactively

applying new crimes, leaving us with at least something of an

ambiguity. And courts interpret ambiguous statutes to avoid

serious questions of unconstitutionality. See Rapanos v.

United States, 547 U.S. 715, 738 (2006) (plurality opinion of

Scalia, J.) (constitutional avoidance where statute “raises

difficult questions” of constitutionality); Cherokee Nation of

Oklahoma v. Leavitt, 543 U.S. 631, 646 (2005) (avoiding an

interpretation that “may violate the Constitution”). To avoid

the prospect of an Ex Post Facto Clause violation here, we

interpret the Military Commissions Act of 2006 so that it does

not authorize retroactive prosecution for conduct committed

before enactment of that Act unless the conduct was already

prohibited under existing U.S. law as a war crime triable by

military commission. In this case, therefore, Hamdan’s

conviction stands or falls on whether his conduct was

prohibited by the pre-existing statute, 10 U.S.C. § 821, at the

time he committed the conduct. 7

7

To be clear, we do not here decide whether or how the Ex

19

B

Before enactment of the Military Commissions Act in

2006, U.S. military commissions could prosecute war crimes

under 10 U.S.C. § 821 for violations of the “law of war.” The

Government suggests that at the time of Hamdan’s conduct

from 1996 to 2001, material support for terrorism violated the

“law of war” referenced in 10 U.S.C. § 821. It is true that in

the text of the Military Commissions Act of 2006, Congress

declared its belief that material support for terrorism was a

pre-existing crime under the law of war and thus under 10

U.S.C. § 821. See § 3a, 120 Stat. at 2624. But exercising our

independent review, as we must when considering the ex post

facto implications of a new law, see Calder v. Bull, 3 U.S.

386 (1798) (opinion of Chase, J.); Marbury v. Madison, 5

U.S. 137 (1803), we conclude otherwise. Material support for

terrorism was not a war crime under the law of war referenced

in 10 U.S.C. § 821 at the time of Hamdan’s conduct.

Analysis of this issue begins by determining what body

of law is encompassed by the term “law of war” in 10 U.S.C.

§ 821. The Supreme Court’s precedents tell us: The “law of

war” referenced in 10 U.S.C. § 821 is the international law of

war. 8 See Hamdan, 548 U.S. at 603 (plurality) (act is law of

Post Facto Clause might apply to this case. As we interpret the

statute, that ultimate constitutional question need not be decided.

8

It has been suggested that courts should not use international

law as a free-floating tool to alter how the courts would otherwise

interpret a domestic U.S. statute when the statute does not

incorporate or refer to international law. See Al-Bihani v. Obama,

619 F.3d 1, 5-8 (D.C. Cir. 2010) (Brown, J., concurring in denial of

rehearing en banc); id. at 9-23 (Kavanaugh, J., concurring in denial

of rehearing en banc). But that interpretive issue is not implicated

in this case. As Congress has often done, and as explained in an Al-

Bihani concurrence, Congress here explicitly referred to

20

war offense when “universal agreement and practice both in

this country and internationally” recognize it as such)

(internal quotation marks omitted); id. at 610 (analyzing

international sources to determine whether conspiracy was

“recognized violation of the law of war”); id. at 641

(Kennedy, J., concurring) (“the law of war” referenced in 10

U.S.C. § 821 “derives from rules and precepts of the law of

nations” and is “the body of international law governing

armed conflict”) (internal quotation marks omitted); Quirin,

317 U.S. at 29 (“law of war” referenced in 10 U.S.C. § 821 is

a “branch of international law”); id. at 27-28 (The “law of

war” is “that part of the law of nations which prescribes, for

the conduct of war, the status, rights and duties of enemy

nations as well as of enemy individuals.”); see also

Instructions for the Government of Armies of the United

States in the Field (Lieber Code), General Orders No. 100,

arts. 27 & 40 (Apr. 24, 1863) (describing the law of war as a

“branch” of the “law of nations”); O.L.C. Memorandum from

Patrick F. Philbin to Alberto R. Gonzales 5 (Nov. 6, 2001)

(“laws of war” are “considered a part of the ‘Law of

Nations’”); id. at 29 (“the term ‘law of war’ used in 10 U.S.C.

§ 821 refers to the same body of international law now

usually referred to as the ‘laws of armed conflict’”). 9

international law and explicitly incorporated international norms

into domestic U.S. law in 10 U.S.C. § 821 by means of the express

cross-reference to the “law of war.” See id. at 10, 13-15

(Kavanaugh, J., concurring in denial of rehearing en banc)

(explaining that distinction).

9

See also Curtis A. Bradley & Jack L. Goldsmith, The

Constitutional Validity of Military Commissions, 5 GREEN BAG 2d

249, 256 (2002) (“As noted above, President Bush’s Military

Order, 10 U.S.C. § 821, and Supreme Court precedent all indicate

that the jurisdiction of military commissions extends (at least) to

violations of the international laws of war.”); Maj. Michael A.

21

We turn, then, to the question whether material support

for terrorism is an international-law war crime.

Newton, Continuum Crimes: Military Jurisdiction Over Foreign

Nationals Who Commit International Crimes, 153 MIL. L. REV. 1,

21 (1996) (“Therefore, the entire scope of history and American

jurisprudence compel the conclusion that Article 21 grants

jurisdiction only over violations of the international laws of war.

The text of Article 21 leads to the same conclusion.”); Ruth

Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96

AM. J. INT’L L. 328, 334 (2002) (“This statutory language” in 10

U.S.C. § 821 “acknowledges that the jurisdiction of military

commissions is defined by the norms of the customary law of

nations, namely, the law of war.”).

Even outside the context of 10 U.S.C. § 821, the term “law of

war” in the U.S. Code and precedent generally refers to the

international law of war. See Madsen v. Kinsella, 343 U.S. 341, 354

(1952) (The “law of war” includes that part of “the law of nations”

which “defines the powers and duties of belligerent powers.”);

Prize Cases, 67 U.S. 635, 667 (1863) (“The laws of war, as

established among nations, have their foundation in reason, and all

tend to mitigate the cruelties and misery produced by the scourge of

war.”); Hearings on H.R. 2498 (UCMJ) Before the H. Comm. on

Armed Servs., 81st Cong. 959 (1949) (Representative Overton

Brooks, Chairman, House Subcommittee No. 1 on Armed Services:

“What is a law of war?” Colonel John P. Dinsmore: “‘Law of war’

is set out in various treaties like the Geneva convention and

supplements to that.” Representative Brooks: “International law.”

Colonel Dinsmore: “Yes, sir.”); U.S. ARMY JAG, LAW OF WAR

HANDBOOK 20 (Maj. Keith E. Puls ed., 2005) (identifying

“customary international law” – that is, “the ‘unwritten’ rules that

bind all members of the community of nations” during war as one

of the two major sources of the law of war, along with conventional

international law); MANUAL FOR COURTS-MARTIAL UNITED

STATES, at I-1 (2012) (“The sources of military jurisdiction include

the Constitution and international law. International law includes

the law of war.”).

22

It is true that international law establishes at least some

forms of terrorism, including the intentional targeting of

civilian populations, as war crimes. See, e.g., Rome Statute of

the International Criminal Court art. 8(2)(b), July 17, 1998,

2187 U.N.T.S. 90; Geneva Convention Relative to the

Protection of Civilian Persons in Time of War (Geneva IV),

art. 33, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287;

COMMISSION OF RESPONSIBILITIES, CONFERENCE OF PARIS

1919, VIOLATION OF THE LAWS AND CUSTOMS OF WAR 17

(Clarendon Press 1919) (the Allied Nations condemned

Germany for “the execution of a system of terrorism” after

World War I).

But the issue here is whether material support for

terrorism is an international-law war crime. The answer is

no. International law leaves it to individual nations to

proscribe material support for terrorism under their domestic

laws if they so choose. There is no international-law

proscription of material support for terrorism.

To begin with, there are no relevant international treaties

that make material support for terrorism a recognized

international-law war crime. Neither the Hague Convention

nor the Geneva Conventions – the sources that are “the major

treaties on the law of war” – acknowledge material support

for terrorism as a war crime. See Hamdan, 548 U.S. at 604

(plurality); Geneva Convention Relative to the Protection of

Civilian Persons in Time of War (Geneva IV), Aug. 12, 1949,

6 U.S.T. 3516, 75 U.N.T.S. 287; Hague Convention (IV)

Respecting the Laws and Customs of War on Land and Its

Annex, Oct. 18, 1907, 36 Stat. 2277.

Nor does customary international law otherwise make

material support for terrorism a war crime. Customary

international law is a kind of common law; it is the body of

23

international legal principles said to reflect the consistent and

settled practice of nations. See RESTATEMENT (THIRD) OF

FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2)

(1987) (“Customary international law results from a general

and consistent practice of states followed by them from a

sense of legal obligation”). It is often difficult to determine

what constitutes customary international law, who defines

customary international law, and how firmly established a

norm has to be to qualify as a customary international law

norm. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). 10

10

Although customary international law, including the

customary international law of war, contains some well-defined

prohibitions at the core, the contours of customary international law

are imprecise. That imprecision provides good reason for Congress

and the Executive, when they want to outlaw violations of

perceived international-law norms, to enact statutes outlawing

specific conduct, rather than simply prohibiting violation of

something as vague as “international law” or “the law of nations”

or the “law of war.” Congress has done so in many recent statutes,

including the Military Commissions Act of 2006. Pub. L. No. 109-

366, 120 Stat. 2600 (2006). See also War Crimes Act of 1996, Pub.

L. No. 104-192, 110 Stat. 2104; Torture Victim Protection Act of

1991, Pub. L. No. 102-256, 106 Stat. 73 (1992); Foreign Sovereign

Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891.

At the same time, the imprecision of customary international

law calls for significant caution by U.S. courts before permitting

civil or criminal liability premised on violation of such a vague

prohibition. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). A

general prohibition against violations of “international law” or the

“law of nations” or the “law of war” may fail in certain cases to

provide the fair notice that is a foundation of the rule of law in the

United States. Therefore, as the Supreme Court required in an

analogous context in Sosa, and as the plurality suggested in

Hamdan, imposing liability on the basis of a violation of

“international law” or the “law of nations” or the “law of war”

24

But here, the content of customary international law is

quite evident. Material support for terrorism was not a

recognized violation of the international law of war as of 2001

(or even today, for that matter). As we have noted, the

Geneva Conventions and the Hague Convention do not

prohibit material support for terrorism. The 1998 Rome

Statute of the International Criminal Court, which catalogues

an extensive list of international war crimes, makes no

mention of material support for terrorism. See Rome Statute

of the International Criminal Court, July 17, 1998, 2187

U.N.T.S. 90. Nor does the Statute of the International

Tribunal for the Former Yugoslavia, the Statute of the

International Tribunal for Rwanda, or the Statute of the

Special Court for Sierra Leone. See Statute of the

International Tribunal for the Former Yugoslavia, adopted by

S.C. Res. 827, U.N. Doc. S/RES/827 (1993), reprinted in 32

I.L.M. 1159, 1192; Statute of the International Tribunal for

Rwanda, adopted by S.C. Res. 955, U.N. Doc. S/RES/955

(1994), reprinted in 33 I.L.M. 1598, 1602 (includes terrorism

itself as a crime); Statute of the Special Court for Sierra

Leone art. 3(d), Jan. 16, 2002, 2178 U.N.T.S. 138 (same).

Nor have any international tribunals exercising common-law-

type power determined that material support for terrorism is

an international-law war crime.

Commentators on international law have similarly

explained that material support for terrorism is not an

international-law war crime. See, e.g., ANDREA BIANCHI &

YASMIN NAQVI, INTERNATIONAL HUMANITARIAN LAW AND

TERRORISM 244 (2011) (“there is little evidence” that a

proscription of “material support for terrorism” is “considered

generally must be based on norms firmly grounded in international

law. See Sosa, 542 U.S. at 724-38; Hamdan, 548 U.S. at 602-03 &

n.34, 605 (plurality). In this case, the asserted norm has no

grounding in international law, much less firm grounding.

25

to be part of the laws and customs of war”). Nor is the

offense of material support for terrorism listed in the JAG

handbook on the law of war. See U.S. ARMY JAG, LAW OF

WAR HANDBOOK (Maj. Keith E. Puls ed., 2005); see also

Jennifer K. Elsea, The Military Commissions Act of 2006:

Analysis of Procedural Rules and Comparison with Previous

DOD Rules and the Uniform Code of Military Justice 12

(CRS, updated Sept. 27, 2007) (“defining as a war crime the

‘material support for terrorism’ does not appear to be

supported by historical precedent”) (footnote omitted).

In short, neither the major conventions on the law of war

nor prominent modern international tribunals nor leading

international-law experts have identified material support for

terrorism as a war crime. Perhaps most telling, before this

case, no person has ever been tried by an international-law

war crimes tribunal for material support for terrorism.

Not surprisingly, therefore, even the U.S. Government

concedes in this case that material support for terrorism is not

a recognized international-law war crime. No treaty that the

Government has cited or that we are aware of identifies

material support for terrorism as a war crime. And the

Government further admits: The “offense of providing

material support to terrorism, like spying and aiding the

enemy, has not attained international recognition at this time

as a violation of customary international law.” Brief for the

United States at 48; see also id. at 55-56 (same).

To be sure, there is a strong argument that aiding and

abetting a recognized international-law war crime such as

terrorism is itself an international-law war crime. And there

are other similar war crimes. But Hamdan was not charged

with aiding and abetting terrorism or some other similar war

crime. He was charged with material support for terrorism.

26

And as the Government acknowledges, aiding and abetting

terrorism prohibits different conduct, imposes different mens

rea requirements, and entails different causation standards

than material support for terrorism. If the Government

wanted to charge Hamdan with aiding and abetting terrorism

or some other war crime that was sufficiently rooted in the

international law of war (and thus covered by 10 U.S.C.

§ 821) at the time of Hamdan’s conduct, it should have done

so.

The Government latches on to a few isolated precedents

from the Civil War era to prop up its assertion that material

support for terrorism was a pre-existing war crime as of 2001

for purposes of 10 U.S.C. § 821. There are several

independent reasons that those cases fail to support the

Government’s argument. First, the Civil War cases did not

involve any charges of material support for terrorism.

Instead, several cases involve guerillas who were punished for

taking up “arms” as “insurgents” – that is, for direct attacks

rather than material support. See, e.g., G.O. No. 15, HQ,

Dep’t of the Mississippi (Apr. 3, 1862), 1 OR ser. II, at 472-

76. Others were convicted of “joining, aiding and assisting a

band of robbers and bandits” – in other words, what we would

likely call aiding and abetting, not material support. G.O. No.

19, HQ, Dep’t of the Mississippi (Apr. 24, 1862), 1 OR ser.

II, at 478. In short, those precedents are at best murky

guidance here. Cf. Hamdan, 548 U.S. at 602 (plurality)

(requiring “plain and unambiguous” precedent). Second,

those Civil War commissions were in part military tribunals

governing certain territory – which are a separate form of

military commission subject to a separate branch of law, and

not the kind of law-of-war military commission at issue here.

As others have suggested, their precedential value is therefore

limited. See Hamdan, 548 U.S. at 596 n.27; id. at 608

(plurality) (The “military commissions convened during the

27

Civil War functioned at once as martial law or military

government tribunals and as law-of-war commissions.

Accordingly, they regularly tried war crimes and ordinary

crimes together.”) (citation omitted). Third, and perhaps most

to the point, those cases do not establish that material support

for terrorism was a war crime recognized under international

law as of 1996 to 2001 when Hamdan committed his conduct,

which is the relevant inquiry under 10 U.S.C. § 821. The

Government contends that those Civil War precedents

illuminate what it calls the “U.S. common law of war” – not

the international law of war. But the statutory constraint here

imposed by 10 U.S.C. § 821 is the international law of war.

As the Government told the Supreme Court in Quirin, “This

‘common law of war’ is a centuries-old body of largely

unwritten rules and principles of international law which

governs the behavior of both soldiers and civilians during

time of war.” Brief for the United States at 29, in Quirin, 317

U.S. 1 (emphasis added) (citation omitted). To be sure, U.S.

precedents may inform the content of international law. But

those Civil War precedents fail to establish material support

for terrorism as a war crime under the international law of war

as of 1996 to 2001. And even the Government admits that

material support for terrorism was not an international-law

war crime as of 1996 to 2001.

In short, material support for terrorism was not an

international-law war crime under 10 U.S.C. § 821 at the time

Hamdan engaged in the relevant conduct.

***

Because we read the Military Commissions Act not to

sanction retroactive punishment for new crimes, and because

material support for terrorism was not a pre-existing war

crime under 10 U.S.C. § 821, Hamdan’s conviction for

28

material support for terrorism cannot stand. We reverse the

decision of the Court of Military Commission Review and

direct that Hamdan’s conviction for material support for

terrorism be vacated.

So ordered.

GINSBURG, Senior Circuit Judge, concurring: I join

the decision of the Court but, with respect to its holding Mr.

Hamdan’s appeal of his criminal conviction by military

commission is not moot, I do so only because precedent so

dictates. I write separately to explain the unfortunate state of

that precedent, which requires us to review the conviction of a

man long since transferred to Yemen who, even if his

conviction were overturned and he were to hear of it, would

not be affected in any way by the result. Because today’s

decision has no actual consequence for Mr. Hamdan, his case

is moot in fact, though, curiously, not in law.

The Supreme Court “presumes” the appeal of a criminal

conviction is not moot unless “it is shown that there is no

possibility that any collateral legal consequences will be

imposed on the basis of the challenged conviction.” Sibron v.

New York, 392 U.S. 40, 57 (1968); see United States v.

Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (per curiam)

(“When the defendant challenges his underlying conviction,

this Court’s cases have long presumed the existence of

collateral consequences”). The Government concedes, as

Hamdan’s counsel contends, that it cannot show there is “no

possibility” Hamdan’s conviction will have a collateral legal

consequence for him. The parties’ mutual desire to have the

court decide this case on its merits is of no moment, however;

an Article III court has an “independent obligation to be sure

[it] ha[s] jurisdiction,” High Plains Wireless, LP v. FCC, 276

F.3d 599, 605 (D.C. Cir. 2002), which here requires us to

determine whether the case has become moot on appeal.

A criminal conviction may and often does have

consequences beyond the penalties imposed in the sentence.

In Sibron, the Court held the defendant’s appeal of his

conviction was not moot, even though his sentence had

expired during the pendency of the appeal, because that

conviction, left undisturbed, could increase his sentence if he

were later to be convicted of another crime. 392 U.S. at 56;

2

accord United States v. Morgan, 346 U.S. 502, 512-13 (1954)

(“Although the term has been served, the results of the

conviction may persist. Subsequent convictions may carry

heavier penalties”). Similarly, in Carafas v. LaVallee, 391

U.S. 234 (1968), the Court concluded that a continuing civil

disability stemming from a criminal conviction, such as a bar

to voting in state elections or to serving as a juror, also keeps

a criminal appeal from becoming moot. Even an adverse

immigration consequence, including a bar on re-entering

United States, may suffice to keep a case alive and hence to

preserve appellate jurisdiction. See, e.g., United States v.

Hamdi, 432 F.3d 115, 121 (2d Cir. 2005).

Although, in considering a challenge to a criminal

conviction, * “the Court [has] abandoned all inquiry into the

*

Contrary to the Court’s reading of the relevant precedents,

Ct. Op. at 12, the Supreme Court does not distinguish between

direct review of a criminal conviction and a collateral attack on a

criminal conviction, by way of a petition for a writ of habeas corpus

or otherwise. The Supreme Court has, on several occasions,

indicated the Sibron presumption applies in a collateral proceeding

for post-conviction relief. See, e.g., Carafas v. LaVallee, 391 U.S.

234 (1968) (holding habeas challenge to criminal conviction not

moot due to “collateral consequences” of conviction); Lane v.

Williams, 455 U.S. 624, 634 (1982) (Marshall, J., dissenting) (“The

majority recognizes that in habeas corpus challenges to criminal

convictions, the case ‘is moot only if it is shown there is no

possibility that any collateral legal consequences will be imposed

on the basis of the challenged conviction’” (quoting Sibron)).

Spencer v. Kemna, 523 U.S. 1 (1998), and Gul v. Obama, 652 F.3d

12, 19 (D.C. Cir. 2011), were habeas cases that did not apply the

Sibron presumption, but the inapplicability of the presumption did

not depend upon a distinction between direct review and habeas. In

Spencer, the petitioner challenged not a criminal conviction but

rather the revocation of his parole. In Gul, the petitioner challenged

not a criminal conviction but rather his designation as an enemy

3

actual existence of specific collateral consequences and in

effect presumed that they exist[],” Sibron, 392 U.S. at 55, the

presumption is rebutted if the alleged collateral consequences

are foreclosed as a matter of law. In Perez v. Greiner, 296

F.3d 123 (2d Cir. 2002), the Second Circuit held moot the

direct appeal of a criminal conviction on the ground there was

“no material possibility that [the defendant] will suffer

collateral consequences on the basis of the challenged

conviction,” id. at 125. The defendant in that case had been

deported when his appeal was heard and was ineligible to re-

enter the country because of an earlier conviction. With the

defendant “permanently barred from this country on a wholly

separate ground, the currently challenged ... conviction

[could] have no meaningful effect on his admissibility and

hence [could not] serve as a possible collateral consequence.”

Id. at 126.

Hamdan and the Government each point to a collateral

consequence of Hamdan’s conviction. Hamdan claims his

conviction for material support of terrorism makes him

subject to permanent mandatory exclusion from the United

States. See 8 U.S.C. § 1182(a)(3)(B)(i)(I), (V). For its part,

the Government claims Hamdan’s conviction may expose him

to an enhanced sentence if in the future he commits a new

offense and is tried therefore in a civilian or military court of

the United States. See DEP’T OF DEFENSE, MANUAL FOR

MILITARY COMMISSIONS, Rule 1001(b)(1)(A) (2010) (“The

trial counsel may introduce [in a sentencing proceeding]

evidence of [prior] military or civilian convictions, foreign or

combatant. Neither decision rested merely upon the ground the

case sounded in habeas. The present Court’s different view of the

matter is of no moment, however; as explained below, binding

precedent unfortunately but unambiguously dictates the Sibron

presumption applies to the direct review of a criminal conviction,

such as Hamdan presents here.

4

domestic, of the accused”); 18 U.S.C. § 3553(a)(1)

(sentencing court shall consider “the history and

characteristics of the defendant”). The adverse collateral

consequence raised by Hamdan is foreclosed as a matter of

law. The adverse collateral consequence posed by the

Government is so far-fetched that the application of the

Sibron presumption in this case risks making our opinion

merely advisory.

The adverse immigration consequence alleged by

Hamdan is impossible as a matter of law because Hamdan is

already subject to mandatory exclusion from the United States

regardless whether his conviction stands. The Immigration

and Naturalization Act (INA) provides: “Any alien who ... has

engaged in a terrorist activity ... is inadmissible.” 8 U.S.C. §

1182(a)(3)(B)(i)(I). The Government provided overwhelming

evidence, none of which Hamdan bothers to dispute,

demonstrating that he engaged in “terrorist activity” within

the meaning of the INA, including the provision of material

support for terrorism. * The INA makes Hamdan inadmissible

*

The INA defines “[e]ngage in terrorist activity” to include

committing “an act that the actor knows, or reasonably should

know, affords material support ...:

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably

should know, has committed or plans to commit a

terrorist activity; [or]

(cc) to a terrorist organization ... [designated as such by the

Secretary of State] ....”

Id. § 1182(a)(3)(B)(iv)(VI). A military commission, the Convening

Authority, and the Court of Military Commission Review each

separately found beyond a reasonable doubt that Hamdan provided

material support generally to al Qaeda, and specifically for an act of

5

not for his conviction, which we reverse, * but rather for

having knowingly supported terrorist activities, a historical

fact we cannot reverse. Cf. Fletcher v. Peck, 10 U.S. (6

Cranch) 87, 135 (1810) (“The past cannot be recalled by the

most absolute power”). Nor is it conceivable that an

immigration court, which applies a standard of proof much

more favorable to the Government than does a military

commission, compare 8 U.S.C. § 1229a(c)(2) (“In the

proceeding [for deciding whether an alien is admissible,] the

alien has the burden of establishing ... the alien is clearly and

beyond doubt entitled to be admitted”), with 10 U.S.C. §

949l(4) (in a military commission “the burden of proof to

establish the guilt of the accused beyond a reasonable doubt is

upon the United States”), would find Hamdan in fact had not

provided any of the five types of material support for which

he was convicted and therefore may be admitted to the United

terrorism by, among other things, serving as Osama bin Laden’s

driver and bodyguard from 1996 to 2001, with the knowledge

Hamdan “was protecting the leader of al Qaeda” and was

“facilitating communication and planning used for acts of

terrorism,” United States v. Hamdan, 801 F. Supp. 2d 1247, 1259

(C.M.C.R. 2011); see also id. at 1254, 1258, 1323. Al Qaeda has

been designated as a “foreign terrorist organization” by the State

Department since 1999. See Designation of Foreign Terrorist

Organizations, 64 Fed. Reg. 55,012, 55,012 (Oct. 8, 1999) (initial

designation); 66 Fed. Reg. 51,088, 51,089 (Oct. 5, 2001)

(redesignation).

*

Although we reverse Hamdan’s criminal conviction for

material support, we do so not for lack of evidence but rather

because the Military Commissions Act of 2006 does not authorize

retroactive prosecution for an act that was not criminal when done.

There is no comparable bar to retroactivity that prevents the

Government from attaching to those same acts adverse immigration

consequences. See Marcello v. Bonds, 349 U.S. 302, 314 (1955)

(“the prohibition of the ex post facto clause does not apply to

deportation”).

6

States. * Because Hamdan is already barred from entering the

United States due to his past involvement in terrorism, his

current conviction has no incremental effect upon his

admissibility and hence the immigration consequence he

proffers cannot serve as a basis for our jurisdiction. Cf. Gul,

652 F.3d at 19—20 (where detention at Guantanamo Bay,

rather than designation as enemy combatant, is the ground for

inadmissibility, immigration consequence of challenge to

designation “too speculative to sustain the exercise of our

jurisdiction”).

The only other collateral consequence alleged is the

Government’s preposterously hypothetical prospect of an

enhanced sentence if Hamdan is in the future convicted in the

United States for committing another crime. The Supreme

Court held in Sibron that the hypothetical future sentencing

enhancement is sufficient to support the presumption that the

conviction being appealed will have an adverse collateral

consequence and hence to keep the appeal from being moot.

Sibron, 392 U.S. at 56. Subsequent cases, however, cast

doubt upon the continuing validity of Sibron as applied to this

case. In Spencer v. Kemna the Court declined to extend the

Sibron presumption to the appeal of a parole revocation

*

In addition to that statutory basis for Hamdan’s permanent

exclusion, Hamdan would not be physically able to re-enter the

country because of his automatic inclusion, as a former

Guantanamo detainee, on the ‘No Fly List.’ See 49 U.S.C. §

44903(j)(2)(C)(v); cf. Gul v. Obama, 652 F.3d 12, 19 (D.C. Cir.

2011) (former detainees are “barred from flights entering the

United States regardless whether a court declares they were

unlawfully detained. An order granting a detainee’s habeas petition

would not mean his exoneration, nor would it be a determination he

does not pose a threat to American interests; it would mean only

that the Government has not proven the detainee more likely than

not ‘materially support[ed]’” terrorism).

7

because any collateral consequence in a future sentencing

“was contingent upon [the defendant again] violating the law,

getting caught, and being convicted.” 523 U.S. 1, 15 (1997);

see also Lane v. Williams, 455 U.S. 624, 633 n.13 (1982)

(“The parole violations that remain a part of respondents’

records cannot affect a subsequent parole determination

unless respondents again violate state law, are returned to

prison, and become eligible for parole. Respondents

themselves are able – and indeed required by law – to prevent

such a possibility from occurring”).

That is, although in Sibron a conviction was presumed to

have adverse consequences for the defendant in a future

hypothetical sentencing, in Spencer the hypothetical

sentencing consequences of a defendant’s parole revocation

were held insufficient to keep his case from being moot

because such consequences are speculative and depend upon

future unlawful conduct by the defendant. Both holdings

were categorical; they did not depend at all upon the

particular defendant’s probability of recidivating. Therefore,

the defendants’ future crimes, apprehension, and conviction

were equally speculative in both cases. It is entirely unclear,

therefore, how the hypothetical sentencing consequences of a

parole revocation could be too speculative to support a

finding of collateral consequences, while the hypothetical

sentencing consequences of a conviction could be concrete

and certain enough to support the presumption of collateral

consequences, and hence Article III jurisdiction, in all

criminal appeals.

Nonetheless, “[i]f a precedent of [the Supreme] Court has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

should follow the case which directly controls, leaving to [the

Supreme] Court the prerogative of overruling its own

8

decisions.” Rodriguez de Quijas v. Shearson/Am. Express,

Inc., 490 U.S. 477, 484 (1989). Accordingly, because

Hamdan’s case is a direct appeal of his criminal conviction

rather than review of a parole revocation as in Spencer, the

Court is bound to hold the Sibron presumption applies and

therefore the hypothetical future sentencing consequences of

Hamdan’s conviction are sufficient to keep his appeal from

being moot.

Finally, I note that although this is an “appeal of a

criminal conviction,” we have strayed far from the familiar

territory of Sibron and its progeny, which deemed sentencing

consequences the antidote to mootness. The criminal

conviction in each of those cases was entered in a regularly

constituted civilian court, and the criminal defendant served

time in a domestic prison before being released into the

sovereign territory of the United States. As such, upon his

release the defendant was subject to the criminal laws of the

United States and of the State in which he was located.

Recidivism being common in the United States, it is

unfortunately reasonable to suppose such a defendant may

again be convicted for violating a state or federal law. * By

*

Recidivism rates of convicts released from prisons in the

United States are well-known and substantial. See DEP’T OF

JUSTICE, BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF

PRISONERS RELEASED IN 1994 1 (June 2002) (using a sample of

272,111 former prisoners in 15 states, study showed 46.9% were

convicted of another offense within three years of release).

Recidivism rates among Guantanamo detainees are comparatively

speculative, but insofar as they are known, are rather modest. See

DIRECTOR OF NATIONAL INTELLIGENCE, SUMMARY OF THE

REENGAGEMENT OF DETAINEES FORMERLY HELD AT

GUANTANAMO BAY, CUBA 1 (March 1, 2012) (of 599 detainees

released from Guantanamo, 4.7% detained again and “confirmed of

reengaging” in hostilities over a nine-year period). Presuming that

9

contrast, Hamdan is presumably in Yemen and is certainly not

in the United States; so far as the record shows, he has never

entered the United States nor expressed any desire to do so;

and he is barred, both legally and physically, from entering

the United States. As a result, the only possible future

sentencing consequence of his conviction by a military

commission would be through extraterritorial application of

our criminal law to a federal crime yet to be committed, or

through a successive prosecution in a military commission for

a future violation of the law of war. It is, to say the least, far

more speculative that Hamdan may find himself again being

sentenced in the United States than it is an domestic criminal

may recidivate and find himself before a domestic criminal

court.

collateral consequences arise from a conviction by a military

commission for violating the law of war and persist after the

convict is released into a foreign country, therefore, hardly seems

justified. Cf. Gul, 652 F.3d at 17 (“not[ing] detention at

Guantanamo and designation as an enemy combatant are recent

phenomena; [therefore a court] ha[s] no basis for inferring they

routinely have collateral consequences”).