Chapter4 Access to Justice | 89 Defense attorneys also argue that they are not entitled to equal access to witnesses and evidence but in fact “reasonable” access subject to the control of the prosecution, which is a significant deviation from Article 46 of the UCMJ. They also claim that Article 13 of the UCMJ, the provision that prohibits unlawful pretrial punishment, does not apply to the military commissions. 209. The prohibition against ex post facto laws, a principle of legality under international law, is, according to military defense, rarely applied by the military commissions. Although the U.S. Government initially conceded that the war crimes specified by the 2006 MCA were not a violation of any law of war statute or law of war as defined by customary international law, it later argued the existence of a fourth body of criminal law known as “domestic law of war.” According to the Government, the 2006 MCA did not create new offenses but merely codified well established offenses that have long been tried by military commissions. This domestic law of war theory is presented by the Government as a non-codified common law notion. 242 210. The question of the ex post facto laws has been litigated before the DC Circuit Court in Hamdan v. United States. Salim Ahmed Hamdan, whose case was referred to above, was convicted by a military commission on five charges of providing material support for terrorism, a war crime specified by the 2006 MCA, based on actions he took before the enactment of the MCA. After the conviction was affirmed by the Court of Military Commission Review, he appealed before the DC Circuit Court raising questions about the scope of the Executive’s authority to prosecute alleged war crimes that were not codified as such under U.S. law at the time of their commission. After Hamdan’s sentence expired, he was transferred to Yemen in 2008 and then released there. However, he continued to appeal his war crimes conviction after his release. On October 16, 2012, the DC Circuit Court concluded that the 2006 MCA did not authorize retroactive prosecutions of crimes that were not punishable as war crimes under U.S. law at the time they were committed, and that material support for terrorism was not a pre-existing war crime under the law of war. Therefore, the Court reversed the judgment and directed that the conviction for material support for terrorism be vacated. 243 211. The issue of ex post facto laws was again addressed by the D.C. Circuit in the Bahlul case. Ahmad Suliman Al Bahlul was sentenced to life imprisonment by a military commission for three crimes: conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes, all of which are not recognized as war crimes under international law. The CMCR affirmed the conviction and sentence and Bahlul appealed before the DC Circuit Court. In July, 2014, the Court vacated the material support and solicitation convictions and affirmed the conspiracy conviction rejecting the ex post facto challenge. 244 The 242 243 244 IACHR, Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay, Washington DC, October 3, 2013. Hamdan v. U.S., 696 F.3d 1238 (2012). Al Bahlul v. U.S. (2014). Inter-American Commission on Human Rights | IACHR