The CMCR Invents the “War Crime” of Material Support for Terrorism

by Kevin Jon Heller

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.

http://opiniojuris.org/2011/06/24/the-cmcr-invents-the-war-crime-of-material-support-for-terrorism/

12 Responses

  1. 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.

  2. 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.

  3. 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.

  4. 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?

  5. 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.

  6. 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 length, in their desperate search for precedent for their actions – such a war crime, though uncharged in this case, was and is available to them under the 2006/2009 Military Commissions Act for anyone actually subject to it:

    “(26) Wrongfully aiding the enemy.–Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.”

    The CMCR arguments, in addition to parroting many of the power-coveting claims of the government’s retired-Army appellate attorney Fran Gilligan (including his Seminole War argument, which speciously pretends that a corrupted, but unmistakable court martial**** in 1818 was in fact a “military commission”), were obviously designed with the D.C. Circuit Court in mind.  A D.C. Circuit Court that’s now unquestionably in thrall to the Executive Branch, and cheerleading its usurpations of power – usurpations that are clearly echoed by the Executive Branch CMCR here (in one of only two cases that will reach the CMCR, unless and until further Commission convictions are obtained in future).

    In a close parallel to this dangerous CMCR material support for terrorism “war crime” invention, Steve Vladeck has again clearly detailed – in an expansion of the profoundly-disturbing assessments of post-Boumediene habeas law by detainee lawyers Willett, Murphy, & Remes recently published by Ben Wittes – just how far off the deep end the D.C. Circuit has been allowed to go by an indifferent, at best, Supreme Court:

    “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.”

    In a follow-up post, Steve added:

    “But Omar is the first appellate opinion with which I am familiar in which a U.S. court has held that, where the Suspension Clause applies, it is not violated by an Act of Congress that takes away habeas jurisdiction and fails to provide any alternative remedy, even while leaving the underlying claim for substantive relief intact. Eisentrager never said as much. Munaf never said as much. Kiyemba II never said as much.

    The short of it is that Omar calls into question any reading of the Suspension Clause as protecting any claim for relief not grounded expressly in the Constitution. That’s a terrifying prospect, and it is just plain wrong.

    ****Here’s how the House committee, charged with investigating the 1818 Andrew Jackson conduct at issue, described it in 1819 (with a quote from the actual order):

    “On the 26th of April, 1818, a general order issued at headquarters, Fort St. Marks, by Major General Jackson, signed by Colonel Robert Butler, Adjutant General, detailing ‘a special court martial, to meet at 12 o’clock, A.M., for the purpose of investigating charges exhibited against A. Arbuthnot, R. C. Ambrister,  and such others, who are similarly situated, as may be brought before it.‘”

    [Furthermore, the form that the Jackson-described “special court martial” took, as detailed in depth by members of Congress in subsequent extensive floor debate in 1819 about the actions of the publicly-popular General, made clear that it pretended to follow the usual court-martial forms, despite the CMCR’s newly-minted, unjustified spin to the contrary.]

  7. 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 am familiar in which a U.S. court has held that, where the Suspension Clause applies, it is not violated by an Act of Congress that takes away habeas jurisdiction and fails to provide any alternative remedy, even  while leaving the underlying claim for substantive relief intact. Eisentrager never said as much. Munaf never said as much. Kiyemba II never said as much.

    The short of it is that Omar calls into question any reading of  the Suspension Clause as protecting any claim for relief not grounded expressly in the Constitution. That’s a terrifying prospect, and it is just plain wrong.”

  8. 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. 

  9. I’m going to have to concur with Aussie Lawyer on this one, that’s a very… strange… course of events, if nothing else.

  10. “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 us most of the time until we get to these moments of severe contradiction like law of nation crime vs. law of nation law of war crime.

    And, while there will be studied indifference, we can await the rationalization for the Rest of the World that all this is so dazzling and please acquiesce to it for it will serve your interests when you face similar situations.  We will then speak about this CMCR decision as a “crystallization” of a customary international law rule in the future textbooks.

    On the due process front, what is also sad is that the CMCR itself is an emblematic example of Executive Discretion. Not sole discretion –   thanks to Congress.

    But,  with this kind of CMCR deference – how much progress has there really been made since Andrew Jackson and the First Seminole War?

    Will someone one hundred years from now make a comment about us similar to Winthrop’s about Jackson?  And will there be a Birkhimer one hundred years hence who will defend us?  And who will be considered the wiser tradition?

    I hear echoes here from the torture debate.  Petraeus in the military says its against the law but when he is seeking CIA nomination trots out “ticking time bomb”.

    Jackson not prosecuted because popular.  High level civilians not prosecuted now because would not be popular (look forward instead of backward).

    Very heavy dark aspect of us.  Judge Robertson was so wise in warning in his obiter dicta with regard to Hamdan about us going back to Chambers v. Florida.

    Sad to see that this all happens under a President who is half-black asserting he is the Joshua generation and whose mother is a descendant of slaveowners.  This history is maybe masked for all of us because it is not taught – we just come up against it in these moments and feel a deep unsettling disturbance inside. 

    Like the images during Katrina.  An old old wound that gets rubbed and is familiar.

    WTF. Nothing new under the sun.  We just watch this new iteration in our time.

    Very heavy stuff.

    Best,
    Ben

  11. “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 it may be.”

    I don’t know about the “historical reception of the case,” but the contemporaneous examination of the case by Congress absolutely contradicts that CMCR claim, as to the reasons for the “notoriety” of the (multiple) controversial Jackson actions in 1818 (including his commission of acts of war against Spain without Congressional authorization).

    For example, the January 12, 1819 House committee report, that I quoted above, went on to say:

    Your committee can find no law of the United States, authorizing a trial, before a military court, for such offences as are alleged against Arbuthnot and Ambrister, (except so much of the second charge as charges Arbuthnot with “acting as a spy,” of which part of the charge the court found him “not guilty;”) nor, in the opinion of your committee, does any usage authorize, or exigency appear from the documents accompanying the report of the trial, which can justify the assumption and exercise of power by the court martial, and the commanding General, on this occasion.”

    That report was summarized by committee member Rep. T.M. Nelson of VA on the House floor during the subsequent debate, as follows:

    The first proposition of the report is, that there exists no law of the United States authorizing the punishment of Arbuthnot and Ambrister, by a military tribunal, for the charges of which they were found guilty and suffered death. The Rules and Articles of War alone contain the law which shall govern courts martial in their proceedings; and I deny that any authority can there be shown for the proceedings, in these cases, of the court or commanding General. The fifty-sixth and seventh articles cannot be construed to extend to foreigners, but are evidently intended to operate on our own citizens only, who shall be found guilty of aiding, abetting, comforting, or corresponding with the enemy.”

    The select Senate committee charged with investigating Jackson’s actions issued a much lengthier report, on February 24, 1819, which concluded:

    The principle assumed by the commanding general, that Arbuthnot and Ambrister, by uniting in war against the United States, while we were at peace with Great Britain, “became outlaws and pirates, and liable to suffer death,” is not recognised in any code of national law.

    Having detailed a court martial, for the purpose of trying the prisoners, the commanding general, by his own authority, set aside the sentence of the court, and substituted for that sentence his own arbitrary will.”

    Here are some more excerpts from the weeks of 1819 floor debate about the House committee report, and its courageous formal resolution of disapproval of Jackson’s court-martial actions (adopted by the House military affairs committee without the support of its virulently pro-Jackson chairman):

    Rep. Charles Mercer of VA:

    “Conforming in so many particulars to the articles and usages of war, it is to be greatly deplored that this court martial, and the General who convened it, departed from both in the most important essentials of justice. For neither the articles of war, nor the treaties on courts martial, authorized the trial of Arbuthnot or Ambrister by the court which tried them.

    In this enumeration of persons subject to the cognizance of an American court martial, a search will be made in vain for a description corresponding with Arbuthnot and Ambrister, after the former had been acquitted of being a spy.”

    Rep. Thomas Williams of CT:

    “Besides, it cannot be pretended that a court martial has cognizance of the crime of conspiracy, or that this was a prosecution of that sort. And the gentleman from Pennsylvania admitted that it could not, technically, be so considered. … But what jurisdiction had this court? Whence did they derive it? It was, say the defenders of the proceedings, an offence against the laws of nations, not punishable, however, by the civil tribunals of our country. The Constitution says that Congress may define and punish piracies and felonies on the high seas, and offences against the laws of nations. It is, then, for Congress to give courts martial this power, if they possess it. If this has been done, it is to be found only in the articles of war. Look over that code, you find no power given to courts martial to punish any offence with which these men were charged, except, only, that of a spy; and of this they were not found guilty. But, says the gentleman from Ohio, (Mr. HARRISON,) to be sure the power is not expressly given by the articles of war, but the power must necessarily reside in these courts. Your code, says he, is a very short one, and cannot be supposed to embrace or provide for every case. It is true this code is a short code, but it is a bloody one, (perhaps this may be necessary;) but are laws of this description to be extended by implication? Your Supreme Court have decided that they have no power to punish offences, but what is given them by the laws of the United States, and have no common law jurisdiction; and, if your Supreme Court have not the power to extend their jurisdiction, surely your military courts cannot possess any such power.

    A court martial, then, did assume the power to try and condemn to death men over whom they had no jurisdiction. These men were not, therefore, legally tried and condemned.

    Rep. William Henry Harrison of OH:

    “No single nation can change the international law, but every nation is competent to change the mode of punishing any particular offence against that law. The United States have, for instance, changed the mode of ascertaining the guilt of a spy. Contrary to former practice, a statute law has directed that persons charged with being spies shall be tried by a court martial. With respect, therefore, to the two individuals to whom the resolution refers, you are to look first into authors on the laws of nations, to determine whether you can punish them, and then to our own laws to ascertain how to punish them.

    From the whole of these premises, I am authorized to draw the following conclusions:

    1st. That prisoners of war, in this country, are not at the arbitrary disposal of the commanding General, or the President of the United States, but, that they are under the protection of laws, or of customs having the authority of laws. In addition to the precedents to which I have referred, I find in Adye, p.5, that the rights of prisoners were under the protection of the court of chivalry.

    2d. That when a charge is made upon a prisoner, for a crime committed by himself, he is to be allowed a fair trial by a board of officers, constituting a special court.

    3d. That over the proceedings of this court, the General has no greater or other authority than he has over the proceedings of ordinary courts martial.”

    Rep. Philip Reed of VA:

    “There are only two denominations of courts recognised in the army, courts martial and courts of inquiry. This has been called a special court. But that does not alter the character of the tribunal; it was still, to all intents and purposes, a general court martial. I know that general courts martial are sometimes called special, perhaps from a want of attention in the phraseology of the order making them. I have sometimes heard them called special when ordered to try a particular case; but all this does not alter or change the character of the court; the President has denominated this a court martial; the Secretary of State has called it a court martial; General Jackson himself calls it a court martial.”


  12. 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

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