Morison on Material Support for Terrorism and the First Seminole War

by Kevin Jon Heller

In honor of the US government’s decision to charge Khalid Sheikh Mohammed and four other men responsible for 9/11 with the non-existent war crime of conspiracy, I want to call readers’ attention to an excellent new article by Samuel Morison about the equally non-existent war crime of material support for terrorism.  Morison vivisects the government’s attempt to justify material support by invoking the summary execution of two British citizens during the First Seminole War.  Here is the abstract:

At present, there are two military commission cases involving terrorism defendants incarcerated at Guantánamo Bay making their way through the appellate courts. In both cases, the defendants are challenging their convictions for “providing material support for terrorism.” While this is a federal offense that could be prosecuted in an Article III court, the legal issue in these appeals is whether providing material support is also a war crime subject to the jurisdiction of a military tribunal. Congress incorporated the offense into the Military Commissions Act, but that is not dispositive, since it is arguably beyond Congress’ legislative competence to create war crimes out of whole cloth and then impose them on foreign nationals having no jurisdictional nexus to the United States.

As a result, the Government has not disputed that there must be at least some historical evidence that the conduct now styled “providing material support” to an enemy previously has been treated as a war crime, where the defendant was a non-resident alien who owed no duty of allegiance to the injured State. In what might be fairly described as a desperate attempt to discharge its burden of persuasion, the Government has now embraced the only “precedent” that comes close to fitting this description. This is problematic, however, because it is also one of the most notorious episodes in the history of American military justice.

In 1818, then Major General Andrew Jackson led an armed invasion of Spanish Florida, thereby instigating the First Seminole War. In the course of the conflict, his troops captured two British citizens who had been living in Florida among the Seminole Indians. In his inimitable style, Jackson impetuously ordered the summary trial and execution of these men, allegedly for “inciting” the Seminoles to engage in “savage warfare” against the United States. Worse yet, Jackson’s immediate motivation for the invasion was to recapture fugitive slaves, who had escaped from the adjacent States and found refuge among the Seminoles. In addition to territorial expansion, his mission was to return this “property” to their “rightful” owners and prevent Florida from serving as a safe haven for runaway slaves.

Remarkably, the legal basis of the Government’s assertion of military jurisdiction over material support charges therefore rests on Jackson’s decision to execute two men, who were almost certainly innocent, in the context of a war of aggression waged to vindicate the property rights of antebellum Southern slaveholders. The purpose of this essay is to reintroduce the episode to a wider audience, and to reflect on the implications of the Government’s decision to rely on it as a precedent for a modern war crimes prosecution.

As Larry Solum would say, read Morison!

http://opiniojuris.org/2011/05/31/morison-on-material-support-for-terrorism-and-the-first-seminole-war/

15 Responses

  1. Of course this does bring us back along a path highlighted by the District Court judge in Hamdan in obiter dicta – going back through very somber aspects of the American soul here – one more circle downward related to torture.  Jackson and the First Seminole Wars, fugitive slaves, and all that!  Nothing new under the sun.  Each time the government does this it is like it turns over one more evil rock of our history in its desperate attempts to keep these people out of Article III courts.  As does Congress in its lust for vengeance.
    Best,
    Ben

  2. I want to add to my comment above.  I read this paper and I had this “WTF?” moment.  The First Seminole War having to be brought in.  Judge Robertson is the one who warned us in Hamdan about with what we were renewing – citing to Chambers v Florida.  Maybe he did not realize just how far back we would go.  We have been through the Insular cases on this stuff and now this – back to slavery.
    Best,
    Ben

  3. I honestly don’t believe that this is an apposite precedent.  If the charge is to find support at all, and I am not saying it necessarily will, it must be found in a case similar to Milligan (of Ex parte Milligan fame) but arising in enemy, not friendly, territory.  (I have this vague recollection of reading about some pre-Milligan commissions in the same vein.)  Additionally, the “terrorism” aspect must obviously involve actual acts of hostilities in an armed conflict, not any act of terrorism. 

    I wonder how carefully the government has looked through the general orders related to military commissions in the Civil War.  I have not yet had time to go through them myself, the most are sitting down the hall in our library.

  4. John,

    I can’t say that I’ve read every Civil War military commission involving an allegation of aiding the enemy, but I’ve read many of them, including every case heretofore cited by the government and/or Winthrop.  And I can tell you that, in my view, none of them answers the mail.  In each case, so far without exception, the defendant was either a U.S. citizen or a resident alien whose provision of material aid to the Confederacy violated a duty of allegiance to the U.S.  This is true even in territory that was an active theater of combat at the timeof the offense, such as the many cases arising in the Dept. of the Missouri.

    In the CMCR, the government flatly conceded that none of the military commissions from the Philippine Insurrection are relevant for this reason.  But if so, the same is true of the Civil War, since both conflicts occurred within sovereign U.S. territory.

    Moreover, as I mention in the paper, in the Civil War period, both the Supreme Court and military commissions expressly ruled that non-resident aliens committed no offense under the law of war merely by supplying the Confederacy with arms, munitions, money, etc.  Even those non-resident aliens who crossed the line into unneutral service (by serving on a Confederate-owned merchant vessel, for example) were treated as prisoners of war, not prosecuted as war criminals.  Simply put, the provision of material aid, by itself, might make one an enemy, but it was not understood to be a war crime.

    I am working on another paper that analyzes the Civil War cases, and you’ll obviously make your own judgment, but I think that explains why the government thought it had no choice but to turn to the waiting arms of Andrew Jackson.

  5. Sam,

    Thanks so much for the unexpected response.  First, I would not limit the search to “aiding the enemy” offenses.  There are others mentioned in the Lieber Code that might fit the bill.  I would start my search by looking for those.

    Additionally, I wonder who, in your view, owed a duty of loyalty to the United States.  Was it everyone within Union or Confederate territory?

    Again, I am not predisposed to a particular result here.  I simply think that, from what I have seen so far, it is not clear to me how thoroughly relevant precedent has been examined.  This is only one minor aspect of a very broad research agenda for me.

  6. First, I agree that the relevant offenses aren’t strictly limited to aiding the enemy per se.  I meant that a looser sense of any factual allegations that might reasonably fit the material support paradigm.  Violations of the rule of non-intercourse were construed quite broadly and, as you know, the offense was often charged as simply “violation of the law of war.”  I think you have to actually read the specifications, which as you suggest complicates matters. So, in terms of methodology, it seems to me that we’re on the same page.

    Second, its pretty clear that any US citizen or resident alien, living anywhere within the territorial boundaries of the US, owed a duty of loyalty to the government, including those living in the Confederate States.  See, e.g., Carlisle v. United States, 83 U.S. 147 (1872) (British citizens living in Alabama during the war owed a duty of loyalty to the US to refrain from selling munitions to the Confederacy).

    All I’m claiming here is that, as a historical matter, the Civil War and Philippine commissions don’t help the government, and that if there is precedent for material support as a war crime, they’ll have to find it elsewhere. 

  7. It seems we do agree on methodology.  In terms of the charge, the question, it seems to me, is not solely whether the individual owed a duty of loyalty to the U.S., but whether this loyalty was a necessary element of an “enemy aiding” offense tried at a military commission.  I don’t necessarily see it as such in several offenses of the Lieber Code.  Again, I have not researched the extent to which those offenses were prosecuted by military commissions.  Its a tedious process to research that, as you noted.

    The loyalty question is an interesting and slightly convoluted one given the Court’s reliance on a citizen’s loyalty to their state in the Prize Cases.  Although the Court did indicate that citizens of the Confederate states owed an ultimate loyalty to the U.S., it relied on their loyalty to their rebellious states to justify treating them as the equivalent of foreign enemies under the laws of war.

    Nevertheless, it is great to know that such great thought is being invested in the process.  Many thanks for your important service and work.

  8. Response…
    Sam & John: but the main focus must be whether material support for terrorism is a violation of the laws of war.  Sam makes a convincing case that it is not per se.  However, terrorism against civilians is proscribed in the GC and 1919 List of War Crimes by the Responsibilities Commission (in our casebook, Paust, Bassiouni, et al., International Criminal Law (Carolina Academic Press, 3 ed. 2007 — available thru  http://www.cap-press.com ).
    And the military commissions are still unlawful, without jurisdiction in any event.  Amici Brief of the HR IG of the Am. Branch of the ILA.  http://ssrn.com/abstract=1547364

  9. I wonder whether it would be fruitful to explore old authorities on the crime of “war treason” and whether it might be a useful analogy for “material support.” See http://www.loc.gov/rr/frd/Military_Law/pdf/law-of-belligerent-occupation_11.pdf (starting at page 97). It is said to be distinguishable from ordinary treason in that it requires no allegiance to the prosecuting belligerent, but only some duty not to provide assistance to the enemy.  Such a duty is said to arise not only in occupied territory but anwhere within the military lines of a belligerent power. It still doesn’t seem to apply to persons who are themselves regarded as “enemy belligerents” though. 

  10. Sam and John,

    I appreciate your exchanges on this subject, but I feel a bit like John Stewart in his riff last night on Trump and Palin eating pizza ( http://www.thedailyshow.com/watch/wed-june-1-2011/me-lover-s-pizza-with-crazy-broad?xrs=share_copy ) about this topic.

    WTF? WTF are the people drafting and passing the MCA 2006 and 2009?

    If we are going to try to understand the MCA 2006 and 2009 Material Support for Terrorism (MST) as being equal to domestic law of war aiding the enemy type settings -duty of loyalty, but at the same time noone actually spent the time to look back and see if this crime has been charged in the past and successfully led to conviction of similarly situated persons at some point in the international laws of war or in the US domestic law of war experience, WTF?

    If someone said the UCMJ covers it but no one points out then that the UCMJ typically applies to folks who pledged allegiance to the United States, WTF?

    If someone said, oh look at the Lieber Code, and no one points out then that the MST type cases in the Lieber Code applied to persons inside the Union who almost certainly owe allegiance to the United States, WTF?

    If someone said, hey it’s like Milligan, and no one points out that Milligan is inside the Union and a person owing allegiance to the United States, WTF?

    If someone testified to Congress, as I vaguely remember someone did, and pointed out that the international laws of war did not include a rule that is like MST (and for that matter conspiracy) in the US civilian courts, but people go ahead and write the rule into the MCA 2006 and 2009 like no one would notice, WTF?

    If someone then decides to charge KSM in the military commission with MST (and conspiracy for that matter) under MCA 2006 and 2009 and this HUGE issue is teed up  for the defense about whether these are crimes that are properly chargeable in a military commission as a law of war crime for these foreigners with no duty of allegiance to the United States, WTF?

    If someone imagines the judge deciding on the preliminary issue in this case having to seek evidence about whether these crimes are actually crimes within the law of war or being left with saying something like “Congress said it is a crime so the person is chargeable with the crime even though the crime does not exist in the international laws of war”, WTF?

    If the situation is so bad that we are back with Armbrister and Arbuthnot in the First Seminole War and Jackson trying to grab at fugitive slaves and all that sordid crap to pull out of our arse for the military commission something that might smell somewhat like MST in a civilian court, WTF?

    If all these people passing bills to prevent these trials occurring in civilian courts are doing this with 1) either knowledge that a conviction in the military commission by a normally constituted judge would be unlikely due to the problem with finding a law of war crime because of its nonexistence for these foreigners or 2) if the crime is found it is only because of an internal US law artifice by Congress rather than as part of the international laws of war, WTF?

    If the prosecutors being forced to do this in a military commission are essentially being set up to have a high risk of failure unless the judge is willing to betray adherence to the international laws of war by those pushing this into the military commissions, WTF?  One simply cannot be cynical enough about the political games that are potentially being played about this case in trying to get KSM in front of the military commission.  After all, the MCA 2006 did not even make it clear if someone could plead guilty, WTF?

    Contrast all this with the civilian court setting where these risks do not play out and the charges are ordinary charges within the confines of that construct.  Yes the coerced evidence would be excluded (not so sure about this in the military commission setting notwithstanding all the post-Ghailani sanguineness about the Ghaliani evidence result likely being the same).  But, the crime – the f’ing crime with which the person is charged in the regularly constituted court – is much less subject to questioning as no one is seeking to assert the civilian court is a law of war court.

    I am amazed that all the national security focused persons are not running around with their hair on fire about the disaster that we risk heading toward in the KSM case because of these elemental points.

    How can justice be done and be seen to be done folks in this setting except if there is an acquittal?  How can a conviction not be fundamentally tainted?  Why put America through such a Potemkin third class process?

    It boggles the mind!  On such terribly serious matters with so many having died or been killed in 9/11 or in the Wars in Afghanistan and Iraq.  WTF?

    Best,
    Ben

  11. “- duty of loyalty” was supposed to be “minus duty of loyalty”
    Best,
    Ben

  12. I have discussed these points with others and there are those (maybe even more cynical than me) who said that the political vision in the political branches may have been that, in any event, we are going to hold these people forever whatever the result in the military commission.   In this vision the view would be that “so even if the MCA is not accurate as a matter of proper law and this deficiency makes a headache for the prosecutors, we really do not care that much. ”

    Of course, the political advantage is that in the event of an acquittal the party that is out of power can rant and rave and gain political points against the party in power about the manner the prosecutor proceeded leading to the decision in order to try to garner credibility with the polity (as a political matter) as being “tougher on terrorism.”  We saw some of this in the Ghailani case.  The drafting of the MCA 2006 or 2009 is so remote from the actual military commission that the “fingerprints” of the persons making this political calculation will be hard to see for the general public and blame for the acquittal will be put on the prosecution team in the classic fluat stercus vision. 

    However, on the MST (and conspiracy) points, the judicial forms in the absence of judicial norms on the substantive law (as opposed to procedural qualms with the military commission) brings us back to  Robert Jackson’s 1945 speech on the Reality of the Law of Nations on what is needed to avoid a political use of the judicial process. 

    Best,
    Ben

    Here the game is even more cynical because the person who may be acquitted will still  be held (as opposed to released as happened with some of the Nuremberg defendants) as the hostilities are said not to have ended and are not likely to be said to be ended for a long time in the future.  I can even imagine in a cynical vision a view that the hostilities are ended when the detainee dies for high value detainees such as KSM. 

    It is likely that the determination of the end of hostilities would be considered a political question by our courts and even if the political  branches do that, that “winding up” would extend detention out even further under WWII type precedents.

  13. Resending (please delete the previous version)

    I have discussed these points with others and there are those (maybe even more cynical than me) who said that the political vision in the political branches may have been that, in any event, we are going to hold these people forever whatever the result in the military commission.   In this vision the view would be that “so even if the MCA is not accurate as a matter of proper law and this deficiency makes a headache for the prosecutors, we really do not care that much. ”
    Of course, the political advantage is that in the event of an acquittal the party that is out of power can rant and rave and gain political points against the party in power about the manner the prosecutor proceeded leading to the decision in order to try to garner credibility with the polity (as a political matter) as being “tougher on terrorism.”  We saw some of this in the Ghailani case.  The drafting of the MCA 2006 or 2009 is so remote from the actual military commission that the “fingerprints” of the persons making this political calculation will be hard to see for the general public and blame for the acquittal will be put on the prosecution team in the classic fluat stercus vision. 
    However, on the MST (and conspiracy) points, the judicial forms in the absence of judicial norms on the substantive law (as opposed to procedural qualms with the military commission) brings us back to  Robert Jackson’s 1945 speech on the Reality of the Law of Nations on what is needed to avoid a political use of the judicial process. 
    Here the game is even more cynical because the person who may be acquitted will still  be held (as opposed to released as happened with some of the Nuremberg defendants) as the hostilities are said not to have ended and are not likely to be said to be ended for a long time in the future.  I can even imagine in a cynical vision a view that the hostilities are ended when the detainee dies for high value detainees such as KSM. 
    It is likely that the determination of the end of hostilities would be considered a political question by our courts and even if the political  branches do that, that “winding up” would extend detention out even further under WWII type precedents.

    Will post link to Jackson speech.

    Best,
    Ben

  14. Robert Jackson, The Rule of Law Among Nations, American Society of International Law 1945 meeting – http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/the-rule-of-law-among-nations/

  15. Jen, while war treason is a tempting alternative, I am uncertain whether it can be separated from the context of occupation.  It seems to me that it cannot be, and most if not all cases in which MST will be charged do not arise in that context.  (In fact, there is a great bit of WW II occupation practice dealing with partisans relevant to “war treasoin

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