24 Jun The CMCR Invents the “War Crime” of Material Support for Terrorism
Earlier today, the U.S. Court of Military Commission Review (CMCR) held in U.S. v. Hamdan that material support for terrorism is a war crime and thus within the jurisdiction of the military commissions. The decision represents the apotheosis of the US’s utterly self-referential approach to international law, because the CMCR managed to reach that conclusion without citing a single non-American source for the idea that material support is a war crime, not simply a domestic crime punished by states either of their own initiative or pursuant to suppression conventions. Indeed, the entire decision rests on a subtle — and fatal — elision of the difference between sources that indicate material support violates the law of nations and sources that indicate material support violates the law of nations regarding war crimes.
What is most distressing is that the CMCR is aware of the difference. The decision repeatedly acknowledges that the issue in the appeal is not whether the international community considers material support to be criminal, but whether it considers it to be a war crime (emphasis added):
“From the very beginning of its history [the Supreme Court] has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.” Ex parte Quirin, 317 U. S. 1, 27-28 (1942). Like the law of nations, the law of war must adapt to changing circumstances to be effective (p. 16).
Using its authority to define and punish offenses against the law of nations, Congress approves, within constitutional limitations, jurisdiction of military commissions to try persons for offenses against the law of war. Quirin, 317 U.S. at 26-31 (p. 16).
In this case, Congress and the President seek to protect our Nation’s interests in ensuring compliance with the law of war and adherence to the law of nations, including customary international law, through adjudication and punishment of particular crimes against the law of war (p. 20).
We, like the military commission judge, consider international and domestic sources of law for pre-existing examples of criminalization under the law of war of conduct similar to that for which appellant was convicted (p. 34).
This emphasis on whether material support is criminal under “that part of the law of nations which prescribes… for the conduct of war” disappears, however, as soon as the CMCR begins to analyze international sources of law. The CMCR signals the change in emphasis at the very beginning of its analysis of those sources, when it notes that it has “an independent responsibility to determine whether appellant’s charged conduct existed as well-recognized criminal conduct” (p. 20). Indeed, the section itself is revealingly — and distressingly — entitled “Criminalization of Analogous Global Conduct.” Notice what is absent in these new formulations of the issue: any requirement that material support be well-recognized as a war crime.
That is not accidental. On the contrary, the elision is necessary to permit the CMCR to claim that international conventions and decisions of international tribunals support the idea that material support is a war crime. Consider the first category of international sources that it cites: international conventions and declarations. After discussing a number of suppression conventions, such as the International Convention for the Suppression of the Financing of Terrorism, the International Convention for the Suppression of Terrorist Bombings, and the International Convention Against the Taking of Hostages, the CMCR concludes as follows (emphasis added):
Although the approach of various nations towards punishment of terrorism-related offenses varies, prosecution of such offenses has been encouraged by the United Nations Security Council and treaties. We are satisfied that international conventions and treaties provided an additional basis in international law that appellant’s charged conduct in support of terrorism was internationally condemned and criminal.
Yes — but not as a war crime. Put aside the fact that, with the exception of the 1999 terrorist financing convention, none of the suppression conventions mentioned by the CMCR deal with anything resembling material support for terrorism, as opposed to terrorism proper. More important, none of the suppression conventions discussed in the decision address terrorism as a war crime. Indeed, the purpose of the conventions was precisely to address terrorism outside of armed conflict, where domestic laws and mutual legal-assistance regimes were often inadequate to address terrorist acts.
The next international source is even less helpful: joint criminal enterprise at the ICTY. According to the CMCR, nothing prevents it from “considering JCE… for purposes of determining whether an appellant’s conduct was prohibited and historically punishable as a law of nations offense” (p. 41). And lo and behold, it does!
In applying the JCE liability analysis, appellant’s underlying conduct constitutes known, unlawful acts historically punishable and established before 1996 (p. 43).
This is a ridiculous conclusion. First, JCE requires proof that the defendant entered into an agreement with another person to commit a crime, that the defendant intended to commit the crime, and that the crime was actually committed — three requirements that are strikingly absent from the crime of material support (see pp. 28-29). Second (and this should go without saying), JCE is a mode of participation, not a “law of nations offense.” Indeed, the CMCR itself acknowledges as much, noting two paragraphs after its statement that it can use JCE to determine whether material support was historically a “law of nations offense” that “JCE doctrine provides a theory of liability for proving a specific crime, and it is not a stand-alone substantive offense” (p. 41). The CMCR might as well claim — and almost does, when it considers the modes of participation in the Rome Statute (p. 44) — that the existence of aiding-and-abetting in international criminal law supports the existence of material support as a war crime. After all, the “underlying conduct” in aiding and abetting as a mode of participation is kind of like the “underlying conduct” in the crime of material support.
The CMCR’s discussion of the third international source — “Non-United States Domestic Terrorism Laws” — is no better. Here we see the elision between material support as a violation of the law of nations and material support as a war crime under the law of nations most clearly, as indicated by the CMCR’s framing of its analysis (emphasis added):
It is the duty of this court to ascertain whether appellant’s conduct, providing material support for terrorism, constituted an offense against the law of nations. In doing so, we apply the definition of terrorism in 2006 M.C.A. § 950v(b)(24)… and we consider the degree to which appellant’s underlying conduct violated international standards defining crimes as shown by various national laws prohibiting terrorism (p. 45).
Notice: crimes, not war crimes. Thus framed, domestic terrorism laws obviously supports the CMCR’s desired conclusion. As it notes, many states criminalize terrorism. Some even criminalized it prior to 1996, when Hamdan’s acts of material support took place. (Although the decision cites only one state that did, India, and that state’s pre-1996 terrorism laws did not criminalize anything remotely as broad as material support). None of those statutes, however, deem terrorism — much less material support for terrorism — to be a war crime. So the entire discussion is irrelevant.
The fourth and final international source is perhaps the worst of all: the crime of criminal membership at the International Military Tribunal and the Nuremberg Military Tribunals. The CMCR cites criminal membership, and convictions for it, in support of its conclusion that there is historical precedent for the “war crime” of material support. The analogy, however, is fatally flawed. To begin, criminal membership was not a war crime; it was a sui generis independent crime. More important, though, criminal membership does not bear even a passing resemblance to material support. First, and most obviously, whereas criminal membership required membership in a criminal organization, material support criminalizes the actions of individuals who are not members of a terrorist group. (See Humanitarian Law Project.) Second, the crime of criminal membership was purely inchoate; because of the membership requirement, it did not require the defendant to contribute to the criminal organization’s crimes in any way. Material support, by contrast, is defined by the defendant’s contribution, however slight, to the terrorist group’s crimes. The only similarity between the two crimes, then, is that they both involve criminal groups.
Properly understood, in short, literally none of the international sources cited by the CMCR provide any support whatsoever for its claim that “[w]hen appellant’s charged offenses began in 1996, the underlying wrongful conduct of providing material support for terrorism, as now defined under the 2006 M.C.A., was a cognizable offense under the law of war” (p. 75). The only sources to that effect are American ones — and even those are far less helpful than the CMCR assumes. But that is a subject for a subsequent post.
Isn’t the decision simply a deferral to the political branches? CMCR makes that much very clear up front. All that follows simply demonstrates why it is not wildly unreasonable for the political branches to have defined MST as a violation of the law of war. I’m not sure if CMCR cited the case, but the court essentially adopted Charming Betsey.
Publius,
I agree with your first point — the CMCR is basically saying that Congress can define any war crime it wants. But that’s obviously problematic, given that considering material support a war crime is, in fact, wildly unreasonable. But I’m not sure I understand your second point. There is nothing ambiguous about the MCA, and interpreting the MCA to create a legitimate war crime of material support is in no way consistent with international law.
Seems to me CMCR is making a customary law argument. Essentially, the criminalization of terrorism and material support for terrorism is so widespread, and has such deep historical roots, that it is not unreasonable for the political branches to regard it as a war crime. Terrorism and MST (or analogous crimes) are and have long been outlawed all over the world. U.S. military commissions and international war crimes tribunals have dealt with war crimes analogous to terrorism and MST, as well as war crimes and theories of culpability which share characterstics with terrorism and MST. All of this makes the political branches’ definition of MST as a war crime not unreasonable. Is it best practice? Perhaps not, but CMCR emphasizes that the MCA is an instrument of foreign policy and national security first and foremost. Therefore, the political branches are due substantial deference. In its way, the CMCR decision is quite progressive. It has formally recognized the emergence of a new customary norm: MST as a war crime.
I think that’s absolutely the argument. The problem is the last sentence: how can there be a new customary norm of MST as a war crime when, in fact, there is no non-American opinio juris or state practice that supports it?
The US is certainly in the vanguard here. Perhaps that’s as should be, given its unique capabilities and responsibilities for international security. Perhaps US state practice in this area is more decisive than other nations’? But that’s a prospective argument, which implicates the extent to which the US’s definition of MST as a war crime might itself further strengthen the norm. The legitimacy of the US’s definition of MST as a war crime remains in question. But thinking prospectively helps, I think, insofar as doing so reminds us that customary law is not static, but is the result of a process. CMCR has recognized that an international norm criminalizing MST has been emerging and has accepted as reasonable the political branches’ logic in recognizing it as a war crime. This decision will undoubtedly influence wart crimes jurisprudence around the world. It will undoubtedly contribute to the process of dealing with terrorist, and terrorist-related, activity. It is very much part of the process.
Who could have predicted: The military prefers to expand its essentially-unsupervised “self-policing” role within the Executive Branch, with the help of Congress, in lieu of answering to an independent federal judiciary… My opinion of modern “military justice” just plummeted, thanks to this long-overdue (a year and a half after oral argument #1) politicized CMCR policy promotion masquerading as detached judicial opinion, from seven (apparently unanimous, though that’s not stated) military officers (Navy Captain(s), and Army, Air Force and Marine Corps Colonels), who also serve as appellate judges in the UCMJ-governed military justice system. “Baffle them with bullshit” seems to have been the guiding “principle” behind the portions of this CMCR opinion that Kevin’s excellent critique eviscerates. As Michel Paradis pointed out in his superb CMCR oral argument (#2, in March this year) on behalf of Al Bahlul, probably every nation around the world “criminalizes” car theft, but that doesn’t somehow make car theft an internationally-recognized “war crime” of universal jurisdiction under “customary law.” If the long-recognized, legitimate war crime of aiding the enemy was what the government actually meant by convicting Hamdan of “Material Support for Terrorism” – as both the government and the CMCR dishonestly imply or assert at… Read more »
Repost of the important Steve Vladeck comments, whose formatting I botched above: “I’ve written before (both here and more formally) about the post-Boumediene Guantanamo litigation in the D.C. Circuit, and the extent to which I’ve been at least somewhat unconvinced by the charge that the Court of Appeals has been engaged in a massive conspiracy to subvert the Supreme Court’s 2008 decision, recognizing that the Guantanamo detainees are entitled to pursue meaningful habeas relief in the federal courts. That was until yesterday. Now, and in a non-Guantanamo case, to boot, a divided panel of the D.C. Circuit has effectively held that Congress has the power to divest the federal courts of jurisdiction over a claim that an individual’s detention is unlawful. …. But even beyond REAL ID, if Congress can take away habeas jurisdiction over any claim for relief founded on a statute or treaty, Boumediene is virtually a dead-letter. After all, none of the Guantanamo detainees have constitutional claims as their central argument against the legality of their detention, and in any event, habeas is about unlawful detention, not unconstitutional detention.” And, from Steve’s second post on Omar, two days ago: “But Omar is the first appellate opinion with which I… Read more »
I think we’ve all missed something here: what may have transpired after the January 2010 hearing. This could be a classic Pentagon do-over, just like those repeat Combat Status Review Tribunals. So much can be inferred from the note detailing recusals and participants at the foot of the cover page of the CMCR’s Hamdan opinion.
There were three judges on the original panel. No decision was issued. Instead, conveniently, one judge decided to retire and the other to recuse from any en banc consideration. Four other members of the prospective en banc panel seem to have also recused although some of these could have been the result of defence challenges. Next, six new judges are appointed. Only one of them recuses.
The composition of the resulting en banc panel? One judge from the original panel (perhaps the dissenter in a 2-1 split rejecting material support as a war crime?), one judge from the general field of judges who, for whatever reason decided not to recuse, and five brand spanking new judges appointed by the Pentagon after they knew they had a problem. The result? Everything the Pentagon could desire.
I’m going to have to concur with Aussie Lawyer on this one, that’s a very… strange… course of events, if nothing else.
“The court takes no comfort in the historical context in which these events occurred or the ultimate disposition of these cases. We cite to these events for their historical occurrence as an embryonic effort of the United States to deal with the complexity of fighters in irregular warfare. In contrast, under the 2006 M.C.A., AUECs have significant due process and are not subject solely to the discretion of the executive. See n. 171 infra. ” Wow – a legal term. This is the “we are ashamed of what we did then, but we are better now” meme. In 2005 down at Duke, I ran into this meme when I asked about Plot E – see the Interpreter by Alice Kaplan – and the unmarked graves of WWII black GI’s court-martialed and executed for crimes in questionable proceedings in Europe. Emmitt Till’s dad is in one of those unmarked graves. Kevin, Publius, M. Gross, Anon and Aussie Lawyer, I suggest the above phrase (which sticks out like almost a Freudian lapsus) is the heart of CMCR’s articulation of the American specificity. The CMCR decision grows out of (the progeny of) this embryo in the “Birth of a nation” (intentional reference to DW Griffith). And these embryonic sources are lost to… Read more »
“But, with this kind of CMCR deference – how much progress has there really been made since Andrew Jackson and the First Seminole War?” Well, Ben, to get back to that alleged Seminole War “precedent” – it’s really no such thing, unless 1818 lawbreaking by a rogue Major General is considered a legitimate precedent for the “faithful execution” of the law by the President in 2011. As Robert Chesney’s helpful breakdown of the CMCR opinion puts it: “[The CMCR’s] Exhibit A is the infamous decision by Andrew Jackson to prosecute two British citizens for aiding the Seminoles during Jackson’s incursion into Florida in 1818. The prosecution’s invocation of this precedent a few months ago occasioned much commentary and criticism, as the episode is quite notorious. The CMCR opinion points out, however, that the notoriety stems from Jackson’s decision to impose a sentence of execution on [actually only one of] the men despite the tribunal’s recommendation of a lighter sentence, and because of the overall notoriety of the First Seminole War—not necessarily because of the use of an aiding-the-enemy charge against British citizens. I’m not sure if that is correct as a statement of the historical reception of the case, but… Read more »
Thanks Anon,
You ought to do a commentary over at Jurist on all this to help blow away the CMCR’s game. Shame on people who should know better.
Robert Chesney’s focus on the historical reception stands in contrast to the potency of the contemporaneous Congressional responses you describe (although the Presidential response was timid because of Jackson’s popularity from what i understand). Going back to before the revisionist history and mythmaking is important and I thank you for doing it.
Best,
Ben