Sorting Through the New Mil Coms Manual

by Deborah Pearlstein

Still catching up on yesterday’s news that DOD released the much-anticipated 2010 edition of the Manual for Military Commissions (MMC). The Manual is here.

Among its many provisions of interest (I’m still skimming) are the rules set forth for prosecutions for the commission crime of material support for terrorism – a crime I and others have argued does not exist as a war crime under international law. (None of the major international criminal tribunals have included it as an offense, for example; neither is there any evidence of its existence as a criminal offense under customary international law.) Given this, the singular international law defense for the inclusion of the “material support” offense in the 2009 version of the Military Commissions Act I’ve been able to imagine is the possibility that it would be used as some version of the expansive theory of vicarious contemplated at some level by the ICTY. (In my final international law class of the year, for example, I happened to teach Furundzija – a 1998 ICTY case finding that a soldier could be prosecuted under a vicarious liability theory for giving “practical assistance, encouragement, or moral support that had a substantial effect” on the perpetration of a war crime committed, provided that the soldier had the requisite intent. It’s debatable what intent was in fact required in that case, but it was either knowledge that one’s actions would assist perpetrator OR intent to facilitate the crime – hardly a meaningless difference.) One might have argued that the MCA offense of “material support” could mitigate the international law problems if deployed, against odds, in this way.

The MCA itself defines the offense as either (1) providing “material support” (a term it defines) “knowing or intending” that it will be used “in preparation for, or in carrying out, an act of terrorism,” or (2) intentionally providing material support to an international terrorist organization engaged in hostilities against the United States if he knows that organization engages in terrorism. By its terms, one might imagine option (1) was crafted to cover the bases in Furundzija; indeed “material support” under the statute doesn’t include something as vague as the “moral support” Furundzija recognized (in a rape case), so perhaps in this respect an intent-based a prosecution could survive. Option (2), on the other hand, seems less likely to survive Furundzija’s more exacting intent requirement. It requires intent only as to the provision of money to the organization; it doesn’t require that the supporter intend that the organization use the support to facilitate or carry out terrorism (only that the supporter have knowledge that the organization has ever engaged in such activities).

So does the MMC provide clarification or cure? In a word – no. It clarifies at least that the charging conduct must take place “in the context of and … associated with hostilities.” This seems a sine qua non for a war crimes charge – it’s not a war crime if there’s not a war – that wasn’t entirely clear by the terms of the statute itself. On the other hand, the MMC preserves knowledge as a potential basis for prosecution for material support for an act of terrorism, and preserves knowledge as the singular basis for prosecution for support to a terrorist organization. In other words, material support could still just be a knowledge-based offense. If Furundzija is in fact the model, and if Furundzija’s more exacting “intent to facilitate” standard applies, then no knowledge-based prosecution could survive. Seems like yet another of many potential issues as these cases are brought and appealed. In the meantime, I hope those international criminal law experts out there will tell me what I’m getting wrong.

http://opiniojuris.org/2010/04/29/sorting-through-the-new-mil-coms-manual/

5 Responses

  1. Deborah,

    I’ve been doing some thinking about this one as well and type (2) “material support” might have origins in the ”aiding the enemy” typology of “law of war” offenses — of which many are explicitly listed in the Lieber Code and discussed in Winthrop’s commentary.  These were not in every case loyalty offenses.  By that I mean that they were not historically chargeable only against citizens of the prosecuting state who had aided that state’s enemy (as some commonly but mistakenly tend to think).

    As I read the history of these offenses though – even assuming they have survived to the modern era of international humanitarian law (IHL) – there is an important implicit limitation that is not observed in the type (2) “material support” charge of the MCA.  Type (1) is even further beyond this scope when applied to non-citizens for reasons that should become clear in this analysis.

    First, I note that these are offenses — if at all — applicable only to civilians aiding the enemy, not to enemy combatant adversaries.  As “law of war” offenses, though, these offenses were historically tried at military commissions by the U.S.  There are numerous Civil War and other examples.  Interestingly, such offenses were included in Milligan’s military commission charges but their “law of war” basis was not relied upon during the appeal to the Supreme Court in Ex parte Milligan

    On this issue, the MCA is true to history in substance but not in label.  By including individuals who “purposefully and materially supported hostilities” within the definition of an “unlawful enemy belligerent,” they have subjected such individuals to punishment by MCA military commissions.  If they do not have a “continuous combat function,” however, they are not properly called ”belligerents” or “combatants,” but simply civilians.  Legally denominating them “belligerents” or “combatants” is inaccurate.  Subjecting them to trial by military commissions isn’t necessarily so. 

    However, the important but implicit historical limitation is that these offenses, unlike offenses by combatant adversaries, must occur in an occupied or active combat zone if not tried as a loyalty offense.  In other words, civilian citizens with a duty of loyalty could be tried by their state of nationality for “aiding the enemy” regardless of where their acts occurred.  Ex parte Milligan essentially establishes that in U.S. territory they must be tried by Article III courts if not tried (and potentially committed) in an area of active conflict that has “closed the courts.” 

    In occupied or combat zones, though, the offense stems from a different source.  The protection of civilians on the battlefield in the laws of war began as (and to some extent still is) a bargained-for exchange.  This is very clear when reading the Lieber Code.  Substantial protections from violence, depredation and punishment apply, but only for so long as civilians refrain from acts hostile to an armed or occupying force. 

    We see this concept in modern IHL, with Additional Protocol I permitting the targeting of civilians “for such time as they take a direct part in hostilities.”  Historically, regardless of nationality such civilians (including those who “aided the enemy”) could also be captured and punished.  It is not clear to me whether any authority remains in modern IHL to punish civilians who engage in these acts, at least outside of an occupation context where some authority clearly exists.

    I think these offenses can be somewhat fairly traced through the development of customary and conventional IHL regarding civilians, at least to a point.  Whether they are or are not from the perspective of modern IHL, however, a simple application of the Charming Betsy canon and later-in-time rule require MCA military commissions to observe and apply the MCA even if not consistent with modern IHL.  I express no opinion regarding whether in that event this is sound policy, but it is now our domestic law.

  2. In Sabra and Shátila, if an army provides material support to a third party with knowledge that the third party intends to commit what would be a war crime against protected persons had the army engaged in this activity directly, is this not a plausible basis for a charge? In a hypothetical case, could the commanding officers hide behind a claim that those who actually carried out the atrocity or terrorist act belonged to a non-military organization and were not in uniform if the military (say) supplied them and transported them to the location of the atrocity?

    If it is OK for a government and army to engage in and support (genocide, terrorism, [fill in the blank]) so long as they do it through a civilian proxy, no matter how deeply and closely involved they are in the actions of that proxy, then IHL is worthless. So obviously there is a war crime here, and what we should be arguing about is where to draw the line. What level of involvement represents military complicity in the crime and when are we not responsible after “the enemy of my enemy” goes over the line in a way we really could not control or avoid?

    In an international conflict, one nation is not responsible for the war crimes perpetrated by another. The US and Britain could not be held responsible for the things the Soviet army did. However, when a combatant force allies itself with partisans, terrorists, Janjawid, or a Hutu mob carrying machetes then they acquire some responsibility for the actions they enable these groups to execute. It is entirely proper that they can be tried by a Military Commission for war crimes by proxy even when their level of direct participation was not itself a war crime.

  3. There is a definition of terror as a war crime, used in Galic, D. Milosevic at the ICTY and various SCSL judgments – it is not a very good one and the way it was found to be part and parcel of customary law by the Appeals Chamber is a bit puzzling…but it could be a start in defining terror in war as a war crime, based on article 51 of AP1. The mens rea requirement makes the crime not easy to establish, however…
    As for responsibility for acts of another force, the ICTY, ICTR and SCSL have made it clear that it could be (i) superior responsibility (Sabra and Chatila scenario, see the report by the Israeli authorities for that) or (ii) aiding and abetting (use of paramilitaries knowing that they are most likely to commit crimes due to their previous conduct and the tasks assigned). See Hadzihasanovic AJ and Brima AJ excluding command responsibility for the latter cases.

  4. I was sleepless last night about the Khadr case. 

    Does the release of the Manual on the first day of his military commission seem Kafkaesque to anyone else?  His lawyers get a few hours to peruse the rules under which the guy is going to be tried.   How “regularly constituted” and “consistent with guarantees of civilized nations” is that? 

    Also, Khadr refuses to wear goggles and gloves to go to and from the court because he considers them to be there to humiliate him.  The other side argues it is Standard Operating Procedure.  I think, when have I heard of a person being charged for a crime having to wear goggles and gloves to go to and from the courtroom in either Article III, state court, or courts-martial?  Never.  I think back to the Bradbury OLC opinion putting such a fine point on “conditions of confinement” as opposed to “conditions of interrogation” to classify certain procedures as permissible conditions of confinement.  Yet the parsing leaves to the side the totality of the mix of these conditions on the person subject to them.  Khadr saying that these things “are there to humiliate him” resonates at least to me.

     ”Outrage against personal dignity” comes to mind.

    I feel the hybradulic pressure of political expediency going on to crush Khadr under the weight of the state.  And, his own country, Canada, washes its hands of him.

    And his lawyers attempt to suppress 142 statements and the other side says they were fine and admissible and he was not treated badly.  There has to be a file somewhere in CIA or DOD which lists the procedures and timing of each thing done to him (maybe in BSCT teams) during his interrogation.  But, can he get access?

    Ah, in an Article III court we could see much of this in the light of day, not in the dark of hidden procedures.

    Judicial forms without judicial norms. 

    Khadr is being made into a martyr by the state. 15 year old kid at the time of the alleged crime held 8 years denies throwing the grenade and refuses to cop a plea.

    Sleepless in Toledo.

    Best,
    Ben

  5. Response…

    Yes, Ben, “regularly constituted” was ruled on in Hamdan and there are more serious reasons why the milt. comms. are unavoidably without lawful jurisdiction (and should not be used).  See our Amicus Brief (extract) at:
    http://ssrn.com/abstract=1547364
    Jordan

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