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DC Appeals Court ruling on Salim Hamdan

DC Appeals Court ruling on Salim Hamdan

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Published by: ABC News Online on Oct 16, 2012
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05/13/2014

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
 Argued May 3, 2012 Decided October 16, 2012No. 11-1257S
ALIM
A
HMED
H
AMDAN
,P
ETITIONER
 v.U
NITED
S
TATES OF
A
MERICA
,R
ESPONDENT
 On Petition for Review from theUnited States Court of Military Commission Review
 Joseph M. McMillan
argued the cause for petitioner.With him on the briefs were
 Harry H. Schneider Jr.
,
CharlesC. Sipos
,
 Angela R. Martinez
,
 Abha Khanna
,
 Adam
 
Thurschwell
, and
 Jahn C. Olson
.
 J. Wells Dixon
,
Shayana D. Kadidal
, and
PardissKebriaei
were on the brief for
amicus curiae
Center forConstitutional Rights
 
in support of petitioner.
 David C. Lachman
was on the brief for
amicus curiae
International Legal Scholars Terry D. Gill and Gentian Zyberiin support of petitioner.
USCA Case #11-1257 Document #1399811 Filed: 10/16/2012 Page 1 of 37
 
2
 John S. Summers
and
 Michael J. Newman
were on thebrief for
amicus curiae
Professor David W. Glazier in supportof petitioner.
Gene C. Schaerr 
and
Kimball R. Anderson
were on thebrief for
amicus curiae
Constitutional Law Scholars insupport of petitioner.
 Jonathan Hafetz
and
David Cole
were on the brief for
amicus curiae
Japanese American Citizens League, et al. insupport 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 NationalSecurity,
 Jeffrey M. Smith
, Attorney,
 Edward S. White
,Captain, JAGC, U.S. Navy Appellate Counsel, and
Francis A.Gilligan
, Appellate Counsel, Office of the Prosecutor forMilitary Commissions.Before: S
ENTELLE
,
 
Chief Judge
, K
AVANAUGH
,
Circuit  Judge
,
 
and G
INSBURG
,
Senior Circuit Judge
.Opinion for the Court filed by
Circuit Judge
 K
AVANAUGH
,
 
with whom
Chief Judge
S
ENTELLE
 joins exceptas to footnote 6, and with whom
Senior Judge
G
INSBURG
 joins except as to footnotes 3, 6, and 8.Concurring Opinion filed by
Senior Circuit Judge
G
INSBURG
.K
AVANAUGH
,
Circuit Judge
:
 
The United States is at waragainst al Qaeda, an international terrorist organization. AlQaeda’s stated goals are, among other things, to drive theUnited States from posts in the Middle East, to devastate theState of Israel, and to help establish radical Islamic control
USCA Case #11-1257 Document #1399811 Filed: 10/16/2012 Page 2 of 37
 
3over the Greater Middle East. Al Qaeda uses terror toadvance its broad objectives. Al Qaeda terrorists do not wearuniforms, and they target American civilians and members of the U.S. Military, as well as U.S. allies. After al Qaeda’sattacks on the United States on September 11, 2001, Congressauthorized the President to wage war against al Qaeda. Thatwar continues.In war, when the United States captures or takes custodyof alien enemy combatants or their substantial supporters, itmay detain
 
them for the duration of hostilities. Moreover, theUnited States may try
unlawful
alien enemy combatantsbefore military commissions for their war crimes.
See Hamdiv. 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 theExecutive’s authority to prosecute war crimes under currentfederal statutes.This particular dispute involves the military commissionconviction of Salim Hamdan, an al Qaeda member whoworked for Osama bin Laden. In 2001, Hamdan was capturedin Afghanistan. He was later transferred to the U.S. NavalBase at Guantanamo Bay, Cuba.Hamdan was not just detained at Guantanamo as anenemy combatant. He was also accused of being an
unlawful
 enemy combatant and was tried and convicted by a militarycommission for “material support for terrorism,” a war crimespecified by the Military Commissions Act of 2006.
See
10U.S.C. § 950t(25);
see also
10 U.S.C. § 950v(b)(25) (2006)(previous codification of same provision). Hamdan’sconviction was based on actions he took from 1996 to 2001 –
before
enactment of the Military Commissions Act. At thetime of Hamdan’s conduct, the extant federal statute
USCA Case #11-1257 Document #1399811 Filed: 10/16/2012 Page 3 of 37

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