No Easy Answers

Source: http://www.defenselink.mil/news/Dec2007/Hamdan-Jurisdiction%20After%20Reconsideration%20Ruling.pdf

H/T: Howard Bashman at http://howappealing.law.com

uNInD STATES OF AMERICA ON RECONSIDERATION
RULING ON MOTION TO DISMISS
v. FOR LACK OF JuRIsDIcnoN

SALIM AHMED HAMDAN 19 December 2007


A_er a hearing on 4 Iune 200_, the Commission granted a Defense Motion to Dismiss for
Lack of Iurisdiction. Thereafter, the Govemment moved the Commission to reconsider that
dismissal, and to hear evidence regarding the accused's activities that would make hím subject to
thejurisdiction ofa military commission, i.e. the Govemment sought to show the Commission
directly that the accused was an alien unlawful enemy combatant, as defined ín the Military
Commissions Act (M.C.A.) é9q8a(l)(i). The Commission granted the Motion for
Reconsideration, and a hearing was held at Guantanamo Bay on 5 and 6 December 2007, at
which the Government presented testimonial evidence from Major Hank Smith, u.s. Army, FBI
Special Agent George Crouch, and DoD Special Agent Robert McFadden. The Defense offered
the estimony of Professor Brian Williams ofthe University ofMassachusetts at Dartmouth, Mr.
Said Boujaadia, a detainee being held at Guantanamo Bay, and the stipulated testimony ofM.
Nasser al Bahri of Sana'a, Yemen. Both sides offered documentary and photographic evidence.
The Defense concedes that Mr. Hamdan is an "alien" for purposes ofthe Motion.

The Commission received and considered the _micLu Curiae brief filed by Frank
Fountain, Madeline Morris and the Duke Guantanamo Defense Clinic.

Having considered this evidence, the Commission finds that the following facts are true:

1. In 1996, the accused was recruited in Yemen to go to Tajikistan forjihad. As a result of
difficulty crossing the border into Tajikistan, he remained in Afghanistan. Because ofhis
experience driving vehicles, he soon came in contact with Osama bin-Ladin, and was offered
work as a driver.

2. The accused began his work driving farm vehicles on bin-Ladin's farms, and afer a
probationary period, was invited tojoin the bin-Ladin security detaíl as a driver ofone ofthe
security caravan vehicles. with the passage ofadditional time, the accused became bin-Ladin's
personal driver sometime in lgg7, and continued in that capacity until the fall of2OOl .

3. On occasion, the accused also served as a personal bodyguard to bin-Ladin. It was customary
to rotate bodyguards as a security measure, and the accused engaged in this rotation. Bodyguards
not actually protecting bin-Ladin would serve as fighters, receive training at al-Qaeda training
camps, serve as emirs ofal-Qaeda guesthnuses, and perform other duties during their rotations
away from body guarding duties. .

4. During this period as bin-Ladin's personal driver and sometimes bodyguard, the accused
pledged baVat, or "unquestioned allegiance" to bin-Ladin. The baVat extended to bin-Ladin's
campaign to conductjihad against Jews and crusaders, and to liberate the Arabian Peninsula
from infidels, but Ule accused reserved the right to withdraw his bQyat if bin-Ladin undertook a
mission he did not agree with. The accused told investigators aker his capture that there were
some men in bin-Ladin's company who did not agree with everything bin-Ladin did or proposed
to do.

5. The accused was aware oftwo ofbin-Ladin'sfatwas, including the 1998 fatwa issued by the
International Islamic Front for Jihad against the Jews and Crusaders, and which called upon all
Muslims to "kill Americans and their allies, both civilian and military . . . in any country where it
is possible, to liberate Al-Aqsa Mosque and the Holy Mosque from their grip, and to expel their
armies from all Islamic territory ..."

6. During the years between 1997 and 2001 , the accused's duties sometimes included the
delivery ofweapons to Taliban and other fighters at bin-Ladin's request. On these occasíons, he
would drive to a weapons warehouse, pIesent a document that contained bin-Ladin's order, and
his vehicle would be loaded with the required weapons. He then delivered the weapons to
fighters or elsewhere as directed by bin-Ladin. On at least one occasion, he took weapons to an
al-Qaeda base in Kandahar.

7. As bin-Ladin's driver and bodyguard, the accused always carried a Russian handgun. It is not
unusual ror men in Afghanistan to carry weapons, and the accused had a Taliban-issued permit to
c_ weapons when he was apprehended. His duty in case ofattack was to spirit bin-Ladin to
safety, while the other vehicLes in the convoy were to engage the attackers.

8. The accused received small arms and other training at al-Farouq training camp.

9. The accused became aware, after the al-Qaeda awacks on the U.S. embassies in Africa, and
aker the USS Cole attack, that bin-Ladin and al-Qaeda had planned and executed those attacks.
No evidence was presented that the accused was aware of the attacks in advance, or that he
helped plan or organize them.

10. Osama bin-Ladin told the accused that he wanted to demonstrate that he could threaten
America, strike fear, and kill Americans anywhere. On hearing this declaration, the accused felt
"uncontrollable enthusiasm."

11. In the days before 9/1 l, Osama bin-Ladin told the accused to get ready for an extended trip.
Aker the 9/1 l attacks, the accused drove bin-Ladin and his son on a ten-day jaunt around
Afghanistan, visiting several cities, staying in different homes or camping in the desert, and
otherwise helping bin-Ladin escape retaliation by the United States. During this period, he
leamed that bin-Ladin had been responsible for the attacks.

ME ANSAR BRIGADE

12. Between the early 1990's and the fall of2OOl, there was in Afghanistan a bona fide military
fighting force composed primarily ofArabs, known as the Ansars. This force engaged the


2

Soviets during their occupation ofAfghanistan. They were subject to a rigid command structure,
were highly disciplined, usually wore a uniform (or uniform parts), and carried their arms
openly. The Ansar uniforms usually consisted ofeither completely black attire or traditional
military camouflage uniform parts.

13. Taliban leaders did not permit the Ansars to operate independently. As a result, the Ansars
were inRgrated with, subject to the command of, and usually formed the elite fighting troops of,
the Taliban army.

14. The Taliban had a conventional fighting force that may well be described as a tradítional
army. They possessed aged-but-functional battle tanks, helicopters, artillery pieces and fighter
aircrah. The Ansars comprised up to 25% ofthe Taliban army.

15. Osama bin-Ladin contributed forces to the Ansars, and provided them with weapons,
funding, propaganda and other support. '

16. By 1997, al-Farouq training camp, and several other training camps, were under the symbolic
conbol of bin-Ladin.

17. The Ansars were primarily motivated by the desire to expel the Soviets and other foreigners
from Afghanistan, but also fought against the Northem Alliance. Some ofthe Ansar units
rejected bin-Ladin's calls for war against America, and the attacks of9/l l .

18. During the U.S. invasion of Afghanistan ín the fall of2OOl, the Ansars were engaged in the
defense of Kandahar.

24 NOVEMBER 2001

19. On 24 November 2001, U.S. forces were operating in the vicinity ofTakta Pol, a small
Afghan village astride Highway 4, which ran between K_ndahar and the Pakistani border. Major
Hank Smith had under his command a small number ofAmericans and six to eight hundred
Afganis he referred to as his Anti-Taliban Forces (ATF). Their mission was to capture Takta Pol
from the Taliban and prevent arms and supplies from Pakistan from entering Kandahar by means
of Nighway 4.

20. Nighway 4 was the main, and perhaps the only, road between Kandahar and the Pakistan
border. It was a significant supply route for people and materials transiting between Pakistan and
Kandahar.

21. During the banle for control of Takta Pol and Highway 4, U.S. and coalition forces fought all
night with the Taliban forces in the area. A U.S./ATF negotiating pary anempting negotiations
under a flag oftruce was ambushed by Taliban forces, and the U.S. and coalition troops engaged
the Taliban in combat, taking casualties. The Taliban forces engaged against coalition forces at
Takta Pol did not wear uniforms or any distinctive insignia.


3

22. After an ovemight battle on 23-24 November, the Taliban vacated the town, and coalition
forces entered Takta Pol the morning of24 Wovember 2001. They swept and secured the town,
and set up a road block south oftown to intercept troops, munitions or other war materials, and
explosive vehicles before they entered the town_ The road block was also intended to prevent
munitions and war materials from being carried toward Kandahar.

23. After capturing the town ofTakta Pol, and while securing the town and establishing his road
blocks, Major Smith and his ATF continued to receive rocket or mortar fire from outside the
tow.

24. At the same time, Kandahar to the north was occupied by a large number ofTaliban forces.
Coalition forces, including Major Smith's forces, were preparing to participate in a major battle
for control ofKandahar, which was already under way.

2S. During the late moming or early akernoon of24 November, a vehicle stopped at the road
block engaged Major Smith's An in gunfire, Two men, apparently Egyptians, from the vehicle
were killed, and an occupant later identified as Mr. Said Boujaadia was captured.

26. On hearing the gunfire, Major Smith proceeded to the road block, arriving within 3-1S
minutes ofthe rlring. By the time he arrived, the accused, driving a different vehicle, had also
been stopped at the roadblock. His vehicle c_rried two SA-T missíles, suitable for engaging
airborne aircraft. The missiles were in their carrying tubes, and did not have the launchers or
firing mechanisms with them.

27. The accused was captured while driving north towards Kandahar from the direction ofthe
Pakistani border. me vehicle carrying Mr. Boujaadia and the two Egyptíon fighters was also
traveling noNh, towards Kandahar when it was stopped.

28. The only operational aircraft then in the skies were U.S. and coalition aircrak providing close
air suppoN and other support for coalition troops on the &ound.

29. Maj_r Smith's ATF did not have any surface-to-air missiles in their inventory because Ule
Taliban had no operational aircraft in the skies. There was no need for missiles that had no
target,

30. A_er consulting with higher headquarters, Major Smith's forces photographed the two
missiles on the tailgate ofone oftheir vehicles, and deshoyed the missiles to prevent them or
their explosives from being used against Coalition forces.

31. Major Smith took control ofthe accused from the Afghan forces who, he feared, would kill
the accused ifhe remained in their con_`rol. me accused was fed, protected and otherwise cared
for while he was in U.S. custody. A Medic checked on him several times a day, and Major Smith
visited him at least once a day until he was evacuated by helicopter a few days after his capture.

32. At the time ofhis capture, the accused was wearing t_ditional Afghan civilian clothes, and
nothing suggestive ofa uniform or distinctive emblem.


4

DISCUSSION OF LAW

The persona_ jurisdiction of a military commission is limited to those who are found to be
"alíen unlawful enemy combatants," derlned in the M.C.A. as those who have "engaged in
hostilities or who ha[ve] pu_posefully and materially suppoNed hostilíties against the United
States or its co-belligerents, who [are] not a lawful enemy combatant[s]. . . ." M.C.A.
é948a(|)(i). Mr. Hamdan may only be tried by this Commission if he falls within this definition.
me burden is on the Govemment to demonstratejurisdiction over the accused by a
preponderance ofthe evidence R.M.G. 905(c)(1). This Commission assumes that Congress
' intended to comply with the Intemational Law ofArmed Conflict when it enacted the Military
Commissions Act and chose this definition of "unlawful enemy combatant". Murray v. Schooner
(TharMing aetsy, 6 u.s. (2 Granch) 64, l 18 (1804).

lnternational Law scholars and experts have long debated the exact meaning ofLaw of
Armed Conflict terms such as "hostilities" and "direct participation". Professor Dinstein
explains "It is not always easy to define what active participation in hostilities denotes. Usually,
the reference is to 'direct' participation in hostilities. However, the adjective 'direct' does not
shed much light on the extent ofparticipation required. For instance, a driver delivering
ammunition to combatants and a person who gathers military intelligence in enemy-controlled
territory are commonly acmowledged to be actively taking paN in hostilities." Yoram Dinstein,
The Conduct of Hostilities under the Law ofIntemational Armed Conflict 27 (Oxford University
Press 2004).

It is ironic that Professor Dinstein should have chosen the "driver delivering ammunition
to combatants" as his example of someone who is obviously taking an active paIt in hostilities.
Other scholars have debated _e scenario of a driver delivering ammunition, and held that the
issue of 'direct participation' should depend on how close the driver acO_ally is to the ongoing
hostilities. See Intemational Committee ofthe Red Cross, SuMMary Report, Third E_per_
Meeting on the No_ion ofDirect Participa_ion in Hosti_ities, Geneva, 32-33, (2005),
ht_://www.icrc.org/web/eng/siteengo.nsfmtmlall/participation-hostilities-ihl-
3 l 1205/$Fi1e_Direct_articipation-in_hostilities 2005_eng.pdf. where one expert argued that "a
distinction had to be made between driving the sáme ammunition truck close to the front line,
whích would constitute "direct" participation, and driving it thousands ofmiles in the rear, which
would not." Even aker making this distinction, it is widely acknowledged that driving "close to
the hont line" is direct participation.

Writing in the Chicago 7ourna1 of Intemational Law, Professor Michael Schmitt
acmowledges that the meaning of direct participation is "highly ambiguous." He concludes,
however, that 'The Commentary appears to suPport the prenúse of a _gh threshold: "[d]irect
par_cipaÚon in hosúll_es únp_es a direct causal relationship between _e acÚvity engaged in and
the harm done to the enemy at the tiMe and theplace where _he activiy tQ_PsplQce." It also
describes direct participation as "acu which by their nature and purpose are inteNded to cause
actual haym to the personnel and equipment ofthe armed forces" and defines hostilities as "acts
ofwar which are intended by their nature or their pu_pose to hit spec_cally the personnel and
the matériel ofthe armed forces ofthe adverse Party." ' Michael N. Schmitt, Direct ParticipatioN


5

iN Host_li_ies by Priva_e CoNtractoys or CiviliaN Employees, Chicago _oumal of International
Law, 51 l, 531, 533 (2004)(interna1 citations omitted; italics in original).

Jean-Francois Quguiner, in a working paper sponsored by Harvard University's Program
on Humanitarian Policy and connict Research, addresses the term "direct parCicipation" as
contained in Article 5 l of Additional Protocol I to the Conventions, and notes that direct
participation has been held to be broad enough to encompass "direct logistical support for units
engaged directly in battle such as the delively ofammunition to a firing position." Jean-Francois
Quguiner, Direc_ Participa_ion iN H_sti_ities Under International Humanitarian _aw 4 (2003),
http://www.ihlresearch.org/ihl/pdfs/briefing3297.pdf.

APPLICATION AND CONCLUSION

The Commission finds that "hostilities" were in progress on the 24`h ofNovember 2001
when the accuse_ was captured with missiles in hís car. Major Smith and his Anti-Taliban
Forces were actively engaged in a firefight with Taliban forces on the night of23-24 November,
had taken casualties, and had been attacked while attempting to negotiate under a flag oftruce.
Even after capturing the town ofTakta Pol and while securing it, they continued to receive
mortar or rocket fire from troops ín the distance. In addition, the Battle ofKandahar was already
under way, with a larger contest expected in the near future, for control ofthe city. Both the
local battle for control ofTakta Pol and the ongoing battle for the more distant Kandahar amount
to "hostilities."

The Commission also finds that the accused directly participated in those hostilities by
drivíng a vehicle containing two surface-to-air missíles in both temporal and spatial proximity to
both ongoing combat operations. The fact that U.S. and coalition forces had the only air assets
against which the missiles might have been used supports a finding that the accused actively
palticipated in hostilities agaiNst _he UNited States a_d its coalitioN paytNers. Although Kandahar
was a short distance away, the accused's past history ofdelivering munitions to Taliban and al-
Qaeda fighters, his possession of a vehicle containing surtace to air missiles, and his capture
while driving in the direction of a battle already underway, satisfies the requirement of"direct
participation." Ifthe two vehicles stopped within minutes of each other at Major Smith's road
block were in fact ttaveling together, a point ofdispute during the hearing, it is arguable that the
accused was also travelíng towards the battle in the company ofenemy fighters. Taken together,
the evidence presented at the hearing supports a finding that the accused "engaged in hostilities,
or . . . puposefully and materially supported hostilities against the United States or its co-
belligerents...." M.C.A. é948a( l)(i).

The Government also argues that the accused "puposefully and materially supported
hostilities" by (|) serving as the personal driver and bodyguard ofthe al-Qaeda mastermind
Osama bin-Ladin, (2) continuing to work for bin-Ladin aner he became aware that bin-Ladin had
planned and directed the USS Cole bombing, the attacks on the two u.s. Embassies in Africa,
and the 9/1 l attacks on the United States; and (3`) by driving bin-Ladin around Afghanistan after
the attacks of9/l l, in an effort to help him avoid detection and punishment by the United States.
While these arguments may well provide grist for the debates offuture generations ofLaw of


6

Armed Conflict Scholars, the Commission does not reach them here. Having found that the
accused drove a vehicle to and towards the battle field, containing missiles that could only be
used againrt the United States and its co-belligerents, the Commission finds that the accused
meets _e first half of the definition of unlawful enemy combatant.
The final element ofM.C.A. é948a.(|)(i)'s definition ofalien unlawful enemy combatant
is that the accused must not have been "a lawful combatant." The M,C.A. defines "lamul
combatant" in é948a(2) to include:

(A) a member ofthe regular forces of a State party engaged in hostilities against the
United States;
(B) a member ofa militia, volunteer cops, or organized resistance movement belonging
to a State party engaged in such hostilities, which are under responsible command, wear a fixed
distinctive sign recognizable at a distance, carry their arms openly, and abide by the law ofwar;
or
(C) a member ofa regular armed force who professes allegiance to a government
engaged in such hostilities, but not recognized.by the United States.
The Defense does not argue that the accused is entitled to lawful combatant status under
any ofthese altematives. After an examination ofthe evidence presented> the Commission
agrees. Altematively> the Defense has urged the Commission to find the accused entitled to
lawful combatant/ Prisoner of War status under altemative definitions contained in the Third
Geneva Convention.

ARTICLE 5 STATUS ISSUE

This Commíssion has elsewhere granted a Defense Motion b determine the accused's
stahs under Article 5 ofthe Third Geneva Convention. The Defense has argued that the accused
may have been a lawful combatant, and therefore entitled to Prisoner ofWar status, under any of
the following subsectíons ofArticle 4.A ofthe Third Geneva Convention:

(l) Members ofthe armed forces ofa Party to the conflict as well as members ofmilitias
or volunteer cops forming part ofsuch armed forces.

(2) Members ofother militias and memben ofvolunteer cops, including those of
organized resistance movements, belonging to a Party to the conflict and operating in or outside
their own territory, even ifthis territory is occupied, provided that such militias or volunteer
corps, including such organized resistance movements, fulfill the following conditions:
[recitation ofthe conditions is omitted hcre].

(4) Persons who accompany the armed fones without achally being members thereof,
such as civilian members of military aircraft crews> war correspondents, supply contractors,
members of labor units or of services responsible for the welfare ofthe armed forces, provided
that they have received authorization from the armed forces which they accompany, who shall

7

provide them for that pu_pose with an identity card similar to the annexed model.

(5) Members ofcrews, including masLers, pilots and apprentices, ofthe merchant marine
and the crews ofcivil aircraft ofthe Parties to the conflict, who do not benefit by more favorable
tPament under any other provisions of international law,

(6) Inhabitants of a non-occupied territory, who on the approach ofthe enemy
spontaneously take up arms to resist the invading forces, without having had time to form
themselves into regular armed uníts, provided they carry arms openly and respect the laws and
customs of war.

The Commission has searched carefully through the evidence presented by the Defense,
and finds nothing that would support a claim ofentitlement to lawful combatant or Prisoner of
War Status under options (l) or (2) above. While the Defense showed, through the testimony of
Professor Williams, that the Ansars were "members ofthe armed forces ofa Pary" or members
ofa militia or volunteer cops "formíng part of such armed forces" there is no evidence that the
accused was a member ofthe Ansars or any other militia or volunteer corps.

Nor is there any evidence before this Commission suggcsting that the accused qualifies
for Prisoner of War stahs under option (4) a civilian accompanying the armed forces. He fails to
fit into any of the suggested categories ofcivilians who might properly accompany the armed
forces, or any similar categories ofpersons, there is no evidence that he "accompanied" such
forces, or that he was properly identified as required by the rule. Indeed, it is clear Lha_ even
civilians who fall into this category can forfeit their entitlement to prisoner ofwar status by
directly participating in hostilities.

With respect to categories (5) and (6) aboTre, there is likewise no evidence that the
accused was a member ofa merchant marine or civil aircraft crew, or U_at he engaged in the
baditional levee-en-masse. The Commission is left to conclude that the accused has not
presented any evidence kom which it might rlnd that he was a lawful combatant, or that he is
entitled b Prisoner of War Stahs under any Geneva Convention Category. The Commission
concludes, then, that he is an alien unlawhl enemy combatant, and not a lawful combatant
entitled to Prisoner of War protection. The accused is subject to the jurisdiction ofthis
Commission.

CONSTITUTIONAL ARGUMENTS

Notwithstanding this finding ofjurisdiction under the Military Commissions Act and the
Law of International Armed Conflict, the Defense has raised three Constitutional objections to
this Commission's exercise ofjurisdiction over him. These are summarized briefly below:

Ex Post Facto: The Defense argued, in its May 200_ Motion to Dismiss, that it would be
a violation ofthe Constitutional prohibition against e_postfacto laws to give a Combat Status
Review Tribunal (CSRT) determination "additional force after the fact," by making them
determinative ofthe accused's status before a military commission. Motion to Dismiss at l l.


8

The Defense objected that when Congress passed the M.C.A., and retroactively expanded the
effect ofa CSRT determination, it deprived detainees ofthe defense of lawful combatancy by
making the CSRT finding "determinative" ofmilitary commission jurisdiction over the accused.
The Defense also argued that subjecting a detainee to military commission jurisdiction
constitutes a "punishment" because it subject5' a defendant to "higher penalties and
disadvantageous evidentiary rules, among other limits on due process." The Defense argued that
Mr. Hamdan did not mow at the time ofthe CSRT that its determination would be used to
subject him to a criminal proceeding before a military commission, and thereby deprived hím of
a meaningful opportuníty to contest the evidence.

The Court notes at the outset that the United States CouM ofAppeals for the D.C. Circuit
has held that the Constitution ofthe United States does not protect detainees held at the U.S.
Naval Base, Guantanamo Bay. BoumerfieNe v. Bush 37J U.S. _pp. D.T. 48 (LOO7). In that case,
the Court ofAppeal_ concluded a lengthy discussion about the entitlement ofaliens to
Constitutional rights with this summary: "Precedent in this circuit also forecloses the detainees'
claims to constitutional rights. In Narbu v. Deutch 344 U.S.A . D.C. 68 233 F.3d 596 604
_, rev'd on othergrouNds sub Nom. IThriJtopher v. Harbury, 53ó U.S. 403, 122 S.
ct. 21_9, ls3 L. Ed_ 2d 4] 3 (2002), we quoted extensively from yerdugo-Urquidez and held that
the Gourt's description ofEiseN_yager was "firm and considered dicta that binds this couN."
Other decisions ofthis court are firmer still. Citing EiseNtragey, we held in PauliNg v. McElyoy,
107 U.S. App. D,C. 372, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960) (per curiam), that "non-resident
aliens . . . plainly cannot appeal to the protection ofthe Constitution or laws ofthe United
States." The law ofthis circuit is that a "foreign entity wiU]out property or presence in this
country has no constitutional rights, under the _ or oUIerwise." People's
Mo_ahediN Org. ofIraN v. U.S. Dep't ofstate, 33_ U.S_ App. D.C. IOó, 182 F.3d 17, 22 (D.C.
Cir. 1999); see also 3L _ouNy SovereigNy (TomM. v. U.S. Dep't ofState, 352 U.S. App. D.C. 93,
292 F.3d _97, 799 (D.C. Cir. 2002). In light ofthis holding, all ofthe Defense's arguments are
deemed to be without merit" (emphasis iN origiNal). In light ofthis current state ofthe law in the
Circuit under which military commissions are reviewed, all ofthis accused's Constitutional
arguments.are also deemed to be without merit.

Beyond this, the Commission finds _at the e_postfacto violations the Defense
complains ofhave been cured by the Commissíon's refusal to accept the October 2004 CSRT
finding as binding, and by holding its own hearing to determine whether the accused would be
subject to thejurisdiction of a military commission. At that hearing, the accused was represented
by no less than six counsel, had the benefits ofan open and public proceeding before a military
judge, and at which representatives ofthe world press, Human Rights groups, and organizations
interested in the application ofInternational Humanitarian Jaw were present. He confronted Ule
witnesses against him, called and presented his own witnesses, and persuaded the Commissíon to
hold open the receipt ofevidence so an additíonal witness on his behalfcould be heard. It has
long been a principle ofthe Intemational Law ofArmed Conflict that unlawful combatants may
be tried for their participation in hostilities by the courts ofthe Detaining Power, and the United
States' determination to exercise this right against Mr. Hamdan does not involve su_prise or the _
ex post facto application ofthe laws. Schmitt, supra, at 52 l . The Defense argument against the
exercise ofjurisdiction on the basis ofthe enpostfwcto clause is rejected.


Bill of Attainder: Thé.Df_ñ¨é._óä_ú_i__¨-Maj 2ÓÓ_._Mo.iíÓñ_to Dismiss, that the

Bill ofAttainder Clause "prevents the MCA from authorizinS a non-judicial findinS of unlawtul
cumb_tant status.`' Defense Motion at 12. This ob_ection, in the Commission's view, is likewise
ln_oted by the evidentiary hearing held ín Guantana_no Bay on 5-6 Decemher, There has been no
"non-judicial" finding of unlawhl combatant status. Thcre has been no legislative rlndins that
any spcL`i{ic Sruup is unlawful. This Commission, havinS heard the evidence in a public trial, has
detcrmined that the accused is an alien unlawfùl enemy combatant, subject to thejurisdiction of a
lnilithry _ulnmission, in a 'rebularly constituted court, al_fording all the necessary "judicia_
buarantee_ which are recoSnized as indispensable by civi]ized peoples."' There is no merit to this
_rSumcnt.

E_ual rrotection: Because the jurisdic(ion ofthe military commission is limited tn
"aliL>n" unlawful enemy combatants, the Defense challenScs its Constitutionality as a violation of
the cqual Urotection clause ofthe United States Constitution. ln support ofits claim, the Defense
citc5', il_t_l.alic_, Gyaham v. Richardson, 403 U.S. 365, 37] (197|); rn r_ Gr_.f_lm, 413 U.S. 717,
_2|-22 (1973). As before, the United States Court ofAppeals for the D.C. Circuit, under which
thc revic_' of military commissions falls, has expressly ruled that the United States Constitution
doe_ not prntect detainees _t Guantanamo Bay. The accused's challenge to the exercise of
juri__iL`tion as a violation ofthe equal protection clause must likewise fail.

CONCLUSIOW

The Government has carried its burden ofshowinS, hy a preponderance ofthe cvidence,
that the accused is an alien unlawful enemy combatant, subject to the jurisdiction of a military
comlnis_inn. The Comlnission has separately conducted a status determination under Article 5 of
thc Third Genevh Convention, and deterrnined hy a preponderance ofthe evidence that he is not
a liwful comb'dtant or entitled to Prisoncr of War Status. There being no Constítutional
impedimcnt tu the Commission's ekercise ot_jurisdiction over him, the Defense Motion to j
Dismiss for Lack of7urisdiction is DENIED. The accused may be tried by military commission.
So Ordered this 19'h day ofDecember, 2007.


Kei . Állred
Captain,JAGC, .S. Navy
Military Judge



10

posted by cboldt  # 12/20/2007 10:32:00 AM