Dodging Hamdan: Does Conspiracy Violate the Law of War?

Ariel Lavinbuk, a 3L at Yale Law, has an interesting proposal on how the Supreme Court should resolve the upcoming Hamdan v. Rumsfeld case. He argues in Slate that the Court should avoid all the hard issues as to legality of military commissions under the Constitution and international treaties. Rather, they should simply hold that even if the commissions are legal, they cannot try Hamdan on charges of “conspiracy” because conspiracy is not an accepted violation of the law of war.



This is a very interesting argument, one that Ariel laid out for me at much greater length during the recent Yale Law symposium on executive power. I don’t have any views (yet) on the question of whether conspiracy is a violation of the law of war, but I wonder if it makes sense for the Court to resolve this tricky interpretive issue first. Traditionally, courts must determine first whether they have jurisdiction to hear the case before they can resolve any other substantive questions. That seems to weigh in favor of resolving at least the question of whether the Detainee Treatment Act bars Hamdan’s current claim.



Moreover, the question of whether or not the law of war includes conspiracy is something that Hamdan can raise before the military commission. Moreover, it is precisely the kind of claim that the Court might want the military commission to resolve first, since it is a pure legal argument that is not fact-dependent. Why wouldn’t they just remand this case to the military commission to resolve that question? Wouldn’t that be the prudent judicial thing to do?



But this is a great argument and one that Ariel deserves a lot of credit for raising. It will be interesting to see whether it comes up tomorrow during oral argument.