As Brent Kendall and Peter Landers of the Wall Street Journal’s Law Blog put it, “If Judge Brett Kavanaugh is a ‘partisan shock trooper in a black robe waging an ideological battle’”—Steven Pearlstein’s outrageous smear—“then he has an odd way of showing it.” Kendall and Landers highlight the panel opinion that Kavanaugh issued today that overturns the conviction, by military commission, of Salim Hamdan for material support for terrorism. Hamdan was an al Qaeda member who worked for Osama bin Laden from 1996 until Hamdan was captured in November 2001.
The gist of Kavanaugh’s ruling is that (1) the Military Commissions Act of 2006 did not retroactively authorize prosecution of conduct that was not prohibited as war crimes at the time the conduct occurred (therefore, the MCA’s prohibition of material support for terrorism could not be invoked) (slip op. at 16-18), and (2) material support for terrorism did not constitute a violation of the “law of war” under the statutory authorization for war-crimes prosecution that was in effect at the time of Hamdan’s conduct (slip op. at 19-27).
On its face, the ruling strikes me as persuasive, but I’ll be interested in what folks who follow national-security matters more closely have to say about it.