The cases of Salim Ahmed Hamdan (Osama bin Laden’s one-time driver and bodyguard) and David Hicks (an Australian who trained in Afghanistan) may lay the groundwork for Malik Obama (Barack Obama’s half-brother) qualifying as an enemy combatant. The president’s older brother is the Executive Secretary of the Islamic Da’wa Organization (IDO), which is run by a country designated as a State Sponsor of Terrorism and a president (Omar al-Bashir) who is wanted for crimes against humanity by the International Criminal Court (ICC).

Malik Obama and Omar al-Bashir: at same 2010 IDO Conference in Khartoum.

Malik Obama’s attendance at the 2010 IDO Conference in Khartoum is not just significant in itself but could provide the legal basis for his providing material support for terrorism because of when that conference took place.

A key to any charge against Malik Obama may involve the Military Commissions Act (MCA) of 2006. When considering the fates of Hamdan and Hicks, both convicted of providing material support for terrorism, the year of this law’s enactment is indeed significant. Hamdan’s conviction was overturned because his crimes took place before the law was in existence.

Hamdan: Freed because of when his crimes took place.

Via the New York Times:

A federal appeals court on Friday overturned the terrorism conviction of Salim Ahmed Hamdan, a former driver and bodyguard for Osama bin Laden whose case has been one of the most tangled to emerge from the war crimes trials of detainees held by the military at Guantánamo Bay, Cuba.

The court found that Mr. Hamdan’s conviction by a military commission for providing material support for terrorism could not stand because, under the international law of war in effect at the time of his actions, there was no such defined war crime.

The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled. {emphasis ours}

Taken in 2010, photos demonstrate that Malik Obama, who is both a Kenyan citizen and a U.S. resident, provided (and may continue to provide) material support for terrorism four years after that law was enacted. Shouldn’t consorting with a man wanted for crimes against humanity and who leads a country that is considered a State Sponsor of Terrorism qualify?

David Hicks, known as the ‘Aussie Taliban’, is a man who was held at Guantanamo Bay for five years after being captured in Afghanistan. In 2007, he was convicted of providing material support for terrorism after pleading guilty. His lawyers are appealing the conviction based on the ruling in Hamdan.

Via ABC:

The basis for the appeal is a US court ruling that the charge against him is invalid.

In 2012, a US appeals court in Washington ruled in the case of another Guantanamo convict, Osama bin Laden’s one-time driver and bodyguard, Salim Hamdan, that providing material support for terrorism was not recognised as a war crime during the time Mr Hamdan and Mr Hicks were in Afghanistan.

They were prosecuted under a US law enacted in 2006 and the court said it could not be applied retroactively. The ruling overturned Mr Hamdan’s conviction. {emphasis ours}

So, Hamdan’s ruling was overturned not because he didn’t do what he was convicted of doing but because he did it before the law making it a crime was enacted. Hicks’s attorneys are making the same argument in his appeal.

HIcks: Known as the “Aussie Taliban”.

It is an argument that Malik Obama cannot make; he was providing material support to terrorism as recently as 2010 as Executive Secretary of the IDO.

Let’s take a look at how the law describes an Unlawful Enemy Combatant:

“(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or “(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. {emphasis ours}

As an Executive Secretary of an organization under the authority of the government of Sudan, there is more than sufficient probable cause to suggest that Malik Obama “has purposefully and materially supported hostilities against the United States”. At least one problem arises in the form of a familial conflict of interest. In particular, Malik’s brother – who happens to also be the President of the United States – is incapable of being objective in this case and should recuse himself.

The only other person with the ability to establish a tribunal to investigate Malik Obama is Secretary of Defense Chuck Hagel, who should either reconcile a conflict of interest as well; his boss’s conflict could render Hagel incapable of doing his job in this case.

Hagel: Other than the President, Hagel only person who can convene tribunal under MCA.

This would certainly be grounds for Barack recusing himself and unless Hagel can demonstrate loyalty to his boss wouldn’t interfere with his decision to form a military commission, justice may require his recusal as well.

To illustrate this conflict of interest, consider that under §950i. Execution of sentence; procedures for execution of sentence of death…

“(b) EXECUTION OF SENTENCE OF DEATH ONLY UPON APPROVAL BY THE PRESIDENT.—If the sentence of a military commission under this chapter extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit. {emphasis ours}

Even if Malik were tried and convicted under the MCA, the responsibility to carry out that sentence would fall to his younger brother, to include the death penalty. Putting President Obama in this position would not be fair to a legitimate system of justice.

While actually trying Malik under the MCA could be far more difficult than convicting him under it, take a look at what qualifies as Principals under §950q:

“Any person is punishable as a principal under this chapter who—(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; “(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or “(3) is a superior commander who, with regard to acts punishable under this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

As the Executive Secretary of the IDO, Malik Obama must know what subordinates are doing and his boss – Suar al-Dahab – has consorted with both the Prime Minister of Hamas and Yusuf al-Qaradawi, the Spiritual leader of the Muslim Brotherhood, the umbrella group for al-Qaeda.

Suar al-Dahab (Malik’s boss) with Prime Minister of Hamas and Qaradawi.

Let’s go to page 77 of the Act. On line 10 (25), it states the following:

“(25) PROVIDING MATERIAL SUPPORT FOR TERRORISM.—‘‘(A) OFFENSE.—Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct. {emphasis ours}

As an Executive Secretary with the IDO, Malik Obama absolutely fits this profile, if for no other reason than his employer is a State Sponsor of Terrorism. By definition, da’wa refers to spreading Islam through prostheletyzing. This requires money. The source of said monies would also be subject to prosecution under the MCA.

While a potential unlawful enemy combatant who has “purposefully and materially supported hostilities against the United States”, Malik Obama received special and illegal tax exempt status from the Internal Revenue Service (IRS) for his organization – the Barack H. Obama Foundation (BHOF) – in 2011. His application was processed in less than one month and tax exempt status backdated 38 months. The signature of the IRS employee who granted Malik his tax exempt status is Lois Lerner.

Lerner: Granted Malik Obama’s foundation illegal tax exempt status.

If Malik Obama’s crimes as an enemy combatant are proven, it would implicate Lerner in similar crimes by aiding and abetting said enemy combatant by providing illegal funds. An investigation into who or what prompted Lerner to do this is indeed warranted. Any superior who instructed her to grant BHOF tax exempt status would also be subject to prosecution.

Since Barack essentially has sole authority or discretion to prosecute crimes under the MCA and it would be unlikely for him to recuse himself from the case, how may justice be served?

The answer is through Congress and the Court of Public Opinion (CPO). One congressman – Rep. Mike Kelly (R-PA) – who sits on the House Ways and Means Committee has publicly stated that the aforementioned claims against Malik Obama and Lois Lerner are “spot on”. In order for this case to be introduced in the CPO, members of Congress must begin speaking publicly about it. One or more must also open up an investigation into the charges in his or her capacity on their respective committees.

Rep. Mike Kelly on allegations against Malik Obama and Lerner are “spot on”.

Earlier this year in Egypt, a complaint was filed with that country’s Attorney General Hisham Barakat against Malik Obama. Complaint No. 1761 alleges Malik’s involvement with terrorists via Youm7 (translation):

…the suspicious activity of a group called the Islamic Da’wa Organization (IDO), which is owned and managed by Malik Obama. This group is now being investigated by international bodies and the attached evidence proves beyond a reasonable doubt that a close link exists between Malik Obama and some of the most notorious characters already wanted for their involvement in terrorism… {emphasis ours}

According to the man who filed this complaint – Sadek Ebeid – it is indeed proceeding with the support of prominent figures in Egypt, to include Tahani al-Jebali, a former Egyptian Constitutional Court justice.

The complaint requests that Malik be subpoenaed to appear in Egypt in order to respond to these charges and that if he does not do so, be put on Egypt’s watch list.

Such a finding, coupled with the attention of the U.S. Congress, would help to make Malik Obama and Barack Obama both defendants in the CPO.

Malik Obama and Barack Obama in Oval Office.