Hamdan’s Conspiracy Theory – A Debriefing

The relentless Ariel Lavinbuk files this report after spending the day at the Supreme Court observing the oral argument today in Hamdan (and then scrambling back up to New Haven to get back to school). The argument he made in Slate yesterday, the Pocket Part, and of course, here on Opinio Juris, was discussed at length today by the justices. Here’s Ariel…

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Today’s oral argument featured a lengthy discussion of conspiracy under international law. By my estimate, as much as twenty minutes of the ninety allotted were spent addressing some aspect of this question. It would be too much to recount the many issues addressed, so those truly interested should listen to the argument themselves.

I do want to take a moment, however, to address the government’s two theories about why conspiracy might be cognizable under international law: history and executive power. Not surprisingly, I believe that both theories ultimately fail.

The government’s historical argument is that conspiracy has long been recognized by U.S. military commissions. The SG, in argument and brief, cites to a few examples: the civil war-era case of Mudd v. Caldera, 134 F. Supp. 2d 138 (D.D.C. 2001); a WWI military treatise by William Winthrop; and the WWII cases of Ex Parte Quirin and Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956). Each of these examples is problematic. Mudd did deal with a man convicted of conspiracy by military commission, but later D.C. District Court raised some concern that the commission’s decision was arbitrary and capricious because it did not consider the question of whether the law of war even applied to the defendant. The Winthrop treatise, while mentioning conspiracy, groups it with other domestic crimes like murder and theft, and not offenses against the law of war. The WWII cases, while also mentioning conspiracy, do not approve of its use by military commissions; indeed, as the SG conceded, because the defendants in those cases where charged with numerous offenses (unlike Hamdan), those courts simply had no need to reach the question presented here – and therefore did not.

While the SG gave the impression that these examples were representative of a larger set, in three years of litigation this is the sum extent of the government’s evidence. A civil war case that may have been arbitrary and capricious, one footnote in a single WWI treatise, and two WWII cases that did not reach the conspiracy question,. That’s it.

The “historical argument” has two major flaws. First, it does not come close to establishing the requisite level of universal practice and custom required to instantiate a norm under customary international law. It doesn’t even come close. Indeed, as I point out in a short piece on the Yale Law Journal’s Pocket Part, the government’s evidence could not be farther from meeting the standards advanced by the SG himself only two years ago in Sosa v. Alvarez Machain. The second argument, and the one made by Prof. Katyal today, is that if practice from 1916 is dispositive of this issue then the government’s entire case falls away: The laws of war, as they were understood during the Civil War, WWI, or WWII surely did not contemplate the “new war” we are now facing. Indeed, the government’s entire argument rests on the idea that circumstances have changed. If that is the case, what good does one 1916 treatise make when every major post-WWII tribunal has rejected conspiracy?

The government’s second argument is that the President, pursuant to the Paquette Habana decision, has the power to define an offense against the Law of Nations. This argument is far more problematic than the first, and seemed to trouble the Justices considerably. First, the power to “Define Offenses” is textually given to Congress not the President. Granting the Executive power to essentially define crimes would create a serious separation of powers problem. [Justices Souter and Stevens suggested as much today.] Second, the government’s reading of the Paquette Habana is very confused. That decision suggests that international law is binding unless there is a controlling act of Congress or the President that overrides. The decision in no way suggests that a controlling act of the President becomes the definitive interpretation of international law. It merely states that if the President, pursuant to some other valid power, makes a decision in tension with international law, that the President’s action should perhaps control. Such a rule has no bearing whatsoever where the President needs to invoke international law to justify the exercise of his power (in this case, to use tribunals). Indeed, the position is completely nonsensical.

While I think the government’s position on conspiracy is a clear loser, I won’t speculate about whether Hamdan will prevail on the issue. At argument today, the Justices seemed far from concerned with narrow rulings. Justice Souter saw the conspiracy problem as indicative of larger structural problems with the commissions themselves. Justice Kennedy seemed to suggest that solving the conspiracy problem without fixing the process by which the tribunals try other offenses would also not be sufficient. The conspiracy issue – and international law more generally – may thus fall to the wayside of a decision focusing more on constitutional and treaty law issues.