Military Commissions to Resume Work (But Still Won’t Apply Real Law)

by Kevin Jon Heller

The New York Times has the story today:

Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.

Charges would probably then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.

Preparations for the tribunal trials — including the circulation of new draft regulations for conducting them — were described by several administration officials familiar with the discussions. A spokeswoman for the military commissions system declined to comment.

With the political winds now against more civilian prosecutions of Guantánamo detainees, the plans to press forward with additional commission trials may foreshadow the fates of many of the more than 30 remaining detainees who have been designated for eventual prosecution: trials in Cuba for war crimes before a panel of military officers.

The administration is also preparing an executive order to create a parole board-like system for periodically reviewing the cases of the nearly 50 detainees who would be held without trial.

Any charging of Mr. Nashiri would be particularly significant because the official who oversees the commissions, retired Vice Adm. Bruce MacDonald of the Navy, may allow prosecutors to seek the death penalty against him — which would set up the first capital trial in the tribunal system. The Cole bombing killed 17 sailors.

This is a problematic development in numerous respects.  To begin with, as Bobby Chesney recently pointed out at Lawfare, the Court of Military Commission Review has yet — more than a year later — to issue a final ruling concerning the viability of material support for terrorism and conspiracy charges, which are at issue in a large number of the cases pending before the military commissions.  It is difficult to understand what is taking them so long, particularly as there is no coherent argument (other than “we’re the U.S., damn it.  We say what the laws of war are!”) that either material support or conspiracy is a war crime.

Even more troubling — if such a thing is possible — is that the Obama administration intends to try the oft-tortured Nashiri in a military commission, perhaps even seeking the death penalty.  That is an even more significant affront to the principle of legality than trying detainees for material support or conspiracy, because the attack on the U.S.S. Cole took place in 2000, before the AUMF even existed.  According to the New York Times, the government intends to argue that the attack was a war crime because a state of armed conflict existed between al Qaeda and the U.S. since 1996, when Osama bin Laden “declared war” on the U.S.  I put that expression in quotes, of course, because non-state actors can’t declare war on anyone in a legally operative way; such declarations only exist in international armed conflict.  Whether al Qaeda saw itself at war with the U.S. in 1996 is irrelevant; war crimes can only be committed in armed conflict, and the existence of an armed conflict is determined objectively, by reference to the organization of the parties and the duration and intensity of the fighting.  (See this excellent article by Andreas Paulus and Mindia Vahakmadze.)  And it is impossible to argue that sufficiently protracted and intense conflict existed between al Qaeda and the U.S. in 2000.

UPDATE: Nick Baumann points out at Mother Jones that even if there was an armed conflict between the U.S. and al Qaeda in 2000 (which he rightly rejects), Nashiri would still not have committed a war crime by attacking the U.S.S. Cole, because a warship is a legitimate target during an armed conflict.  To be sure, Nashiri was not a privileged combatant, so he could still be prosecuted in federal court for the attack.  But he would not be triable before a military commission, because the attack itself did not violate the laws of war.

11 Responses

  1. If all this were really true, then the trial of Nazi officers for the concentration camps was illegal. Jews were, of course, a non-state party and there was no armed conflict between Germany and the Jews. Therefore, since in your view military commissions can only try “war crimes” that are part of an armed conflict, the US had no business trying Nazis for ordinary murder of ordinary civilians that occurred during an armed conflict but were not themselves part of the conflict. Such murders should only be tried in civilian court, at least according to your theory of jurisdiction. Alternately, you might argue that the Nazi soldiers could have been subject to military trial, and then only the trials of civilians engaged in extermination would have been improper.

    Of course, in reality military commissions can try any violation of international or municipal law by soldiers or civilians of an enemy country with whom we are engaged in armed conflict or in occupation of enemy territory. We do this when the ordinary court system of the enemy is unable to provide justice. The charges may be war crimes, or other violations of international law, or violations of the law of the country in which they occurred. Military commissions provide a way to punish murder, rape, and other serious crimes committed by civilians (which are never “war crimes”) as well as crimes committed by soldiers some of which may be war crimes and others may be ordinary crimes.

    Of course, if the Al Qaeda unit of the Army of Afghanistan under the Taliban did declare war on the US and thus triggered an armed conflict, then the attack on the US Cole was clearly a case of combat at sea. Therefore, the deaths on the Cole were combat deaths, not murder or any other crime. A military commission would see this and dismiss all charges. However, if you insist that there was no armed conflict and that the attackers were civilian, and you brought the case in civilian court, then the court might be led to regard this as a “terrorist” attack and the deaths are murder.

  2. Hmm, there actually was this little armed conflict between Germany and most of the other countries in the world in the 1940s.  It was called WWII.  And, of course, the Jews were quite often citizens of those countries.  And, of course, those Jews were often killed during the war.  So nope, my “theory of jurisdiction” — i.e., the completely unprecedented and radical idea that war crimes can only be committed during armed conflict — doesn’t rule out crimes committed in concentration camps.

  3. Plus, the law has evolved a bit since 1945 – while nullum crimen was not generally considered a rule applicable to international law after WWII, at least since the ICCPR the international community – US included – has clearly taken a stand against retroactive application of unfavourable penal laws even when dealing with violations of the laws of war.

  4. I don’t claim that the concentration camps weren’t a crime, and they occurred during a war, but they weren’t war crimes. It is a war crime for German soldiers to intentionally kill the civilians of enemy countries, but when they kill their own civilians or the civilians of countries they have as allies (formerly occupied countries with now friendly governments that are technically at peace) then such killings are simple murder, not a war crime. Thus the killing of Jews from occupied France is a war crime, but the killing of Jews from Vichy France is simple murder.

  5. Because the treatment of Jews and other minorities by the Germans was NOT a war crime (as Howard correctly observes), the allies created the concept of “crimes against humanity” to cover these offenses.  As a strict matter of law the prosecution for that offense probably did violate the “nullen crimen” principle, but as Guy notes that rule was not firmly endorsed in international law in 1945 — it is today, however, at a minimum being embedded in the Geneva Conventions, the ICCPR, and at least implicit in the statute of the Rome Court.  Moreover, given that the military commissions are American and not international tribunals, it is mandated by the U.S. Constitution’s prohibition on ex post facto enactments which is found in Article I and makes no exception for non-Article III courts.

    The second key point to be made is that where military commissions and other equivalent tribunals have validly exercised jurisdiction over non-law of war offenses, they have done so on a territorial basis.  That is to say, they have been serving as domestic law courts under authority of occupation law in foreign territory, or more controversially, martial law courts in the nation’s own territory.  The use of commissions as martial law courts is logically precluded at least in the United States by ex parte Milligan, and while some Cubans might wish to argue otherwise, as a matter of law the U.S. is not an occupying power in Guantanamo, so the ONLY lawful basis for a military commission sitting there is as a law of war court.

    Any military commission trials in Guantanamo must thus comply both with any requirements posed by the U.S. Constitution and federal law, as well as any mandates imposed by the law of war to be lawfully constituted tribunals.  U.S. military commission jurisprudence from WWII clearly establishes that compliance with national law is insufficient — it is a war crime in itself to conduct a military trial of adversaries failing to meet international legal standards even if the procedures are fully permissible under national law. 

  6. If an armed conflict existed, the attack on the Cole was legally equivalent to the attack on the Ehrenfels in the harbor of Goa during Operation Boarding Party in 1943. The rules for lawful combatants are different in maritime law from those of land armies, and although Goa would have had a claim against those who engaged in an attack in their neutral territorial waters, that cause of action would not transfer to Germany. Still, it seems likely that the British saboteurs from SOE India were likely to be unlawful combatants. Nobody has ever suggested that they were “war criminals” as that term is normally defined. Clearly they could have been tried in Goa or Germany had they been captured, but we regard them as heroes, not international criminals.

  7. Dave,

    Pre-1939 crimes against Jews were not prosecutable as war crimes, because they were not committed in armed conflict.  But numerous crimes against Jews committed during the war were prosecuted as both war crimes and crimes against humanity (the former as violations of the Hague Regulations concerning the treatment of civilians during occupation).  The use of Jews as slave labor in the concentration camps is a case in point.

    So no, Howard is not correct.

  8. I don’t claim that the concentration camps weren’t a crime, and they occurred during a war, but they weren’t war crimes.

    The Medical tribunal held that experimentation on Jewish concentration-camp inmates was a war crime. I TWC 181-82. The Pohl tribunal held that Action Reinhardt, the systematic expropriation of Jewish property from concentration-camp inmates, was a war crime.  V TWC 977.   The Farben tribunal held that the use of Jewish slave labor at Auschwitz was a war crime.  VIII TWC 1186.

    I am happy to provide dozens of other cites, if anyone is interested.

  9. Kevin – I’ll wait for your book – which I eagerly look forward to!  When will it be in press?

  10. Should be last week in May…

  11. Response…
    Why the military commissions are still UNLAWFUL and without jurisdiction =

    Is the Obama Administration setting up all convictions in milt. comms. for reversal by the Supreme Court?

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