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D.C. Circuit Reverses Hamdan Conviction; Law of War Does Not Include “Material Support for Terrorism”

Published online by Cambridge University Press:  15 February 2017

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Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 107 , Issue 1 , January 2013 , pp. 234 - 237
Copyright
Copyright © American Society of International Law 2013

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References

1 Judge Brett Kavanaugh, Senior Judge Douglas Ginsburg, and Chief Judge David Sentelle.

2 Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012); see Terry Baynes, Bin Laden's Driver's Conviction Reversed by U.S. Court, Reuters, Oct. 16, 2012, at http://www.reuters.com/article/2012/10/16/us-usa-binladen-driver-idUSBRE89F0YV20121016; Charlie Savage, In Setback for Military Tribunals, Bin Laden's Driver's Conviction Is Reversed, N.Y. Times, Oct. 17, 2012, at A22; Del Quentin Wilbur & Ernesto London˜o, Court Overturns Conviction of Bin Laden's Driver, Wash. Post, Oct. 17, 2012, at A2.

3 Pub. L. No. 109-366, 120 Stat. 2600 (2006).

4 Crook, John R., Contemporary Practice of the United States, 102 AJIL 860, 873 (2008) [Find Full Text] [CrossRef] [Google Scholar]; Hamdan, 696 F.3d at 1240.

5 United States v. Hamdan, 801 F.Supp.2d 1247 (U.S. Ct. Mil. Commn Rev. 2011) (en banc).

6 Hamdan, 696 F.3d at 1240.

7 Id.

8 Id. at 124041.

9 Id. at 1241.

10 Hamdan contended that Congress could not constitutionally expand the scopeoflaw ofwar offenses for which he could be tried, arguing that the Define and Punish Clause, U.S. Const. Art. I, 8, cl.10, limits Congress to proscribing offenses already illegal under international law. The court did not decide this question. In a footnote, Judge Kavanaugh argued in his concurrence that the court should decide the issue and reject Hamdan's argument because Congress's war powers under Article I [of the U.S. Constitution] are not defined or constrained by international law. The U.S. Constitution does not give the international communityeither directly, or indirectly through the vehicle of international lawa judicially enforceable veto over Congress's exercise of its war powers. Id. at 1247 n.6.

11 Id. at 1247 (citations omitted).

12 Id.

13 Id. at 1241.

14 Id. at 1248.

15 Id. at 125053 (citations and footnote omitted).

16 Id. at 1253 (Ginsburg, J., concurring).

17 Id.