York.687 Furthermore, some of the offences that detainees have been charged with, as
discussed in more detail below, are not confined to alleged violations of the laws of war.
For instance, despite being the most common charge against detainees, the offence of
providing material support for terrorism is not a violation of the laws of war.688 Providing
material support to terrorist groups and acts, however, are federal offences that can be
charged in federal courts.689 The above suggests that federal courts may in fact be a more
appropriate venue for trying detainees.
307. Second, and despite President Obama’s reliance on the fact that military commissions
enable the “protection of sensitive sources and methods of intelligence gathering”, it is
equally true that federal courts consistently handle cases involving classified and sensitive
information. For instance, Guantánamo detainees’ habeas corpus cases in federal courts
routinely involve such information.690 In federal prosecutions of suspected terrorists,
including the federal trial of former Guantánamo detainee Ahmed Khalfan Ghailani,
federal courts have issued protective orders to help prevent the disclosure of both
“particularly sensitive discovery materials” and classified information.691 Furthermore, the
Classified Information Procedures Act (CIPA) is used by federal courts to protect
classified evidence in a way that balances the defendant’s rights with the US government’s
national security needs.692 The military commissions’ Chief Prosecutor, Brigadier General
Mark Martins, has stated that CIPA serves as the basis for the military commissions statute
and rules and that the rules “incorporate CIPA and codify federal case law regarding CIPA
687
United States District Court Southern District of New York, United States v. Usama Bin Laden et al., “Indictment”,
<https://s3.amazonaws.com/s3.documentcloud.org/documents/802160/indict.pdf>; United States District Court Southern District
of New York, United States v. Jamal Ahmed Mohammed Ali al Badwi and Fahd al Quso, “Indictment”,
<http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/cole/usalbadawi051503ind.pdf>. See, also, Oriana Zill, “The U.S.
Embassy Bombings Trial – A Summary”, Frontline,
<http://www.pbs.org/wgbh/pages/frontline/shows/binladen/bombings/bombings.html>; UN Special Rapporteur on human rights
and counter-terrorism, Report to the Human Rights Council, A/HRC/6/17/Add.3, op. cit., note 22, para. 21.
688
See, for instance, United States Court of Appeals for the District of Columbia Circuit, al Bahlul v. United States of America,
(en banc), 14 July 2014, op. cit., note 680: “The Government concedes that material support is not an international law-of-war
offense (…) and we so held in Hamdan II”, “The government has repeatedly conceded that the three offenses of which Bahlul
was convicted [namely material support for terrorism, solicitation and conspiracy] are not, and were not at the time of Bahlul’s
conduct, law-of-war offenses under international law”. See, also, United States Court of Appeals for the District of Columbia
Circuit, al Bahlul v. United States of America, 12 June 2015, op. cit., note 632: “In light of the international community’s explicit
and repeated rejection of conspiracy as a law of war offense”.
689
18 U.S.C. §§ 2339A, 2339B, 2339C. See, also, UN Special Rapporteur on human rights and counter-terrorism, Report to the
Human Rights Council, A/HRC/6/17/Add.3, op. cit., note 22, para. 21: “the Government’s justification for military commissions
is incorrect as a matter of fact because the nexus between the events of 11 September and United States citizens would allow
ordinary courts to try offences such as conspiracy and terrorism”. ODIHR notes that before October 2001, 18 U.S.C. § 2339A,
which authorizes federal courts to prosecute individuals for providing material support to terrorists, may not have applied to
conduct committed outside the United States. Nonetheless, if the punishable conduct did constitute a war crime, ordinary courtsmartial would have presumably been available.
690
See, for example, United States District Court for the District of Columbia, Boumediene v. Bush, 20 November 2008, op. cit.,
note 203, pp. 9-10: “[t]o support its claim (…) the Government relies exclusively on information contained in a classified
document from an unnamed source.(…) Unfortunately, due to the classified nature of the Government’s evidence, I cannot be
more specific about the deficiencies of the Government’s case at this time”; United States District Court for the District of
Columbia, Dhiab v. Obama, Case No. 05-1457, 3 October 2014, <http://www.lawfareblog.com/wp-content/uploads/2014/10/103-2014-Dhiab-order.pdf>: In Dhiab v. Obama, there has been extensive litigation around the public release of the redacted video
footage of Dhiab being forcibly extracted of his cell and force-fed. Both the government and Dhiab’s lawyers are to privately
review the tapes prior to their public disclosure. The tapes have not been released publically at the time of this report.
691
“National Security Prosecutions: Protective Orders”, Federal Judicial Center, February 2013, pp. 46-72,
<http://www.fjc.gov/public/pdf.nsf/lookup/trpord02.pdf/$file/trpord02.pdf>.
692
“Synopsis of Classified Information Procedures Act (CIPA)”, United States Department of Justice website,
<http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm02054.htm>.
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