Al-Hawsawi Files Hamdan-based Motion in the 9/11 Case

Overview, AE 107, Motion to Dismiss for Lack of Jurisdiction. All of the accused in this case are charged with offenses under the Military Commissions Act of 2009. The conduct of which they are accused occurred before enactment of the MCA. In accordance with the U.S. Court of Appeals for the D.C. Circuit’s opinion in Hamdan v. United States, Congress did not aim to create any constitutional Ex Post Facto problems, when it defined offenses under the MCA. In finding that material support for terrorism, which is codified in the MCA, was not an established law of war offense in 2006, the D.C. Circuit in Hamdan makes clear that the mere fact that an offense is codified in the MCA does not mean it was a law of war offense in the past. In order to levy charges before this military commission for conduct that occurred before enactment of the MCA while avoiding an Ex Post Facto concern, the Government must allege offenses that were crimes under the law of war at the time that conduct occurred. Accordingly, the Government must demonstrate that each offense for which the accused are charged in this case was a recognized law of war offense at the time of the alleged conduct, and that the charges were properly brought as such. If the Government cannot make this showing as to an offense, that offense must be dismissed, for it runs afoul of Congress’ intent to comply with the Ex Post Facto Clause. The status of conspiracy as a law of war offense, for example, is explicitly in doubt and pending review before the D.C. Circuit. See United States v. Ali Hamza al Bahlul, Case No. 11-1324. The Bahlul panel has asked the parties to brief the impact of the Hamdan decision on its review of Mr. Bahlul’s challenge to the conspiracy charge.