An Opportunity for Judicial Review of the Existence of Armed Conflict?

by John C. Dehn

Let me respond to Kevin’s thoughtful post and discuss an opportunity for judicial review of an (implicit or explicit) elected branch assertion of the existence of an armed conflict.  (After all, I promised Raha an example that I have not yet provided.)

In my opinion, Hamdan is not an example of such judicial review.  The Bush administration did not argue that no armed conflict existed between the U.S. and al Qaeda.  It argued that it was an armed conflict unregulated by the Geneva Conventions of 1949 (or other law delimiting the President’s use of war-like powers).  In the language Kevin quotes, the Court rejected that claim.  The dispute wasn’t about whether an armed conflict existed, only about what law governed it.

The review of military commissions proceedings should provide an opportunity for judicial review of the existence of an armed conflict contrary to elected branch claims.  This is because military commissions are part and parcel of the war powers of our government, and the existence of an armed conflict would seem to be essential to their use.  According to In re Yamashita, 321 U.S. 1, 11-12 (1946),

“The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war.  That sanction is without qualification as to the exercise of this authority so long as a state of war exists — from its declaration until peace is proclaimed.” (emphasis added)

Thus, there is a very good argument that military commissions do not have constitutional power to try individuals for any conduct engaged in prior to the existence of an armed conflict.  Such conduct cannot be a law of war violation, nor would its punishment prevent violations of the laws of war or be a “part of the conduct of war.”  This remains true even if one accepts that commissions are now being convened during an armed conflict.  In this way, military commissions are similar to courts-martial, which require that an individual be subject to the Uniform Code of Military Justice at the time of the offense (for subject matter jurisdiction) and at the time of trial (for personal jurisdiction).  Conduct underlying an alleged military commission offense occurring prior to an armed conflict is not within the subject matter jurisdiction of military commissions.  Yet some military commission charges are for conduct, such as the USS Cole attack, which predates September 11, 2001 (9/11).

The issue then becomes whether an armed conflict with al Qaeda existed prior to 9/11.  The Military Commissions Act authorizes prosecution of offenses it defines regardless of whether the underlying conduct occurred “before, on or after September 11, 2001.” 10 U.S.C. 948d.  This might be interpreted as a legislative assertion that an armed conflict existed prior to 9/11, or as a delegation to the executive to determine that it did at the time of any offense charged.  Thus, in spite of what the plurality appeared to suggest in Hamdan, merely charging pre-9/11 conduct should at the very least be understood as an implicit assertion of the existence of an armed conflict on the inclusive dates of the offense(s).

In Hamdan, although the issue was raised, the Supreme Court never determined when the armed conflict with al Qaeda began. The basis of the Court’s decision made it unnecessary to resolve the issue, although Hamdan had been charged with conspiratorial conduct dating back to 1996.  In his dissenting opinion, Justice Thomas found “that the duration of that conflict dates back (at least) to Usama bin Laden’s August 1996 Declaration of Jihad Against the Americans.” The plurality disagreed, remarking “even the government does not go so far.”  It noted, “neither in the charging document nor in submissions before this Court has the Government asserted that the President’s war powers were activated prior to September 11, 2001.”


So just when did the armed conflict with al Qaeda begin?

After bin Laden’s declaration of “war,” I believe al Qaeda’s first significant acts of violence were the 1998 bombings of U.S. embassies in Africa. President Clinton unilaterally responded with missile attacks in Sudan and Afghanistan. In a statement to the Nation, he stated that the attacks were part of “a long, ongoing struggle between freedom and fanaticism.” He said that there was “compelling information [al Qaeda members] were planning additional terrorist attacks against our citizens and others with the inevitable collateral casualties and … seeking to acquire chemical weapons and other dangerous weapons.”

Were the embassy bombings “armed attacks,” “acts of hostilities” or merely peacetime crimes of violence?  What about the military response?  Clinton’s remarks and military response could be taken as identifying, engaging and seeking to terminate an armed conflict.  It is has been reported that the Justice Department’s Office of Legal Counsel (OLC) issued an opinion in which it found the U.S. to be in an “armed conflict” with al Qaeda in 1998.  On the other hand, the U.S. has prosecuted alleged participants in the bombings in a federal, not a military court. Given the very indistinct nature of the executive’s response and the lack of any action by Congress, it would be difficult to find these bombings and the U.S. response anything more than limited incidents of hostilities, rather than the start or continuation of an armed conflict that persisted until 9/11.

The next significant act of violence against the U.S. attributed to al Qaeda was the bombing of the USS Cole in a Yemeni port.  I am unaware of any reported U.S. military response to this attack.  Around the same time, a U.S. intelligence official stated, “[w]e have quietly gone after [bin Laden’s] organization, and we’re picking it apart limb by limb.”  The actual nature and scope of any covert operations in response to this incident, or in response to the embassy bombings, is not fully known.  Given the fact that covert actions are not supposed to involve “traditional military activities,” it might be hard to classify them as acts of hostilities forming part of an armed conflict, but they could be.  The FBI investigated and the U.S later issued federal indictments (not military charges) against suspects allegedly associated with al Qaeda.

This history suggests, similar to the facts in Monotoya (cited in my earlier post), that the political branches gave no clear indication that the U.S. was in a general state of armed conflict or actual hostilities with al Qaeda prior to 9/11.  Such a finding would be difficult given the intermittent nature of al Qaeda violence and the somewhat schizophrenic nature of U.S. responses to it.  A court reviewing the jurisdiction of military commissions might reasonably conclude that the embassy bombings and the U.S. military response are incidents of “actual hostilities” or armed conflict given the scale of the attack and the military response.  The OLC memo apparently supports this view, perhaps more.  It is possible the extent of U.S. covert operations against al Qaeda could be considered enough to perpetuate the state of hostilities if the government is willing to reveal them to support its jurisdictional claims.  It is certainly an interesting problem, but one that a court reviewing the jurisdictional limits of military commissions would seem to have an independent say in resolving.

10 Responses

  1. John, thanks for your posts on this.  I’ve been interested in this question for some time, but haven’t been able to look into this; these posts are helpful both in framing the questions and in suggesting some possible solutions.

    You write that there is a very good argument that there is a very good argument that military commissions do not have the constitutional power to try individuals for conduct committed prior to the existence of an armed conflict (by this, I assume you mean that the Constitution permits neither Congress nor the President to convene military commissions in these circumstances).

    You then comment on when the armed conflict with al Qaeda may have begun (assuming it existed/exists).  I found your analysis here interesting.  On the one hand, you emphasize the factual circumstances that are often thought to give rise to armed conflict determinations (the scale, intensity, and duration of hostilities, etc.).  On the other hand, you note the apparent relevance of an OLC determination in 1998 that the U.S. was in an armed conflict with al Qaeda.  And then of course there is the AUMF of 2001, and ensuing hostilities on Afghanistan.

    Assuming, then, that the judiciary plays a role in reviewing whether an armed conflict exists for purposes of adjudicating the legitimacy of the asserted jurisdiction of military commissions, which of these factors are most relevant?  I see three possibilities, though there could be more.

    1)  A political determination (via OLC opinion or congressional act) that an armed conflict exists, is sufficient in the eyes of the judiciary.  Here the judiciary doesn’t question the underlying armed conflict determination, but does review to make sure that the political branch(es) actually did determine than an armed conflict exists.
    2)  A political determination that an armed conflict exists is not sufficient in the eyes of the judiciary, but it is given substantial weight, along with other factors, in the judiciary’s independent judgment as to whether an armed conflict exists.
    3)  A political determination than an armed conflict exists is not authoritative in the eyes of the judiciary.  The judiciary exercises completely independent judgment as to whether the relevant hostilities rise to the level of armed conflict.

    My sense from reading your posts on this is that the second option is probably the closest to where the law is on this.  I suppose a fourth possibility is that the political branches could attempt to set the standard for the threshold of hostilities required to give rise to an armed conflict – a standard by which the judiciary then would use in exercising its independent based on the facts of a given case.

  2. Professor Dehn,
    Thank you for another thoughtful post.  In suggesting that an armed conflict did not begin in 1998, you note “the lack of any action by Congress.”  I am curious how congressional action/inaction after the 1998 embassy attacks is relevant to inquiry into the beginning and/or existence of an armed conflict between the US and Al Qaeda.  Even if the President lacks constitutional authority to declare war for the purposes of domestic law, in practice he has the power to unilaterally use military force amounting to armed conflict for the purposes of the LOAC.  The Libyan intervention is the latest example.  Or are you suggesting that military commissions only have constitutional power to try individuals for acts committed during armed conflicts authorized by Congress?

  3. John:  The relevant term in the jurisdictional provision of the 2009 MCA is “hostilities,” rather than “war” or “armed conflict”; nevertheless, you are likely correct that the government will have to prove the existence of an armed conflict in the Nashiri (COLE bombing) case, since the basic charge is perfidy, which is a violation of the LOAC that I assume requires the existence of an armed conflict.  There is also the constitutional argument, of course (see Steve Vladeck’s article), that these sorts of military commissions can be used in lieu of article III courts only to try law-of-war offenses — which, if accepted, would also appear to require proof of an armed conflict.

    Nashiri’s counsel has already teed up the question in their memo to the Convening Authority asking that the chrages not be referred — see pp. 16-18 of

  4. Response…
    can’t be at “war” with al Qaeda as such b/c not a state, nation, belligerent, or insurgent under traditional criteria — but, of course, there is an ongoing international armed conflict in Afghanistan and parts of Pakistan that has involved conduct of some members of al Qaeda. 

  5. @ JORDAN: the conflict in AFG between AQ (and the TB) on the one side and the US and NATO on the other, is non international in nature, as it is not ”a clash between nations” (please have a look at common art 2 of the CG).

    As for determination of an non international armed conflict, it is a matter of objective determination, not what states want or don’t want. The ICTY has an extensive jurisprudence on the matter, and it basically boils down to 2 elements, level of hostilities, + organizations of the parties = NIAC, political determination is not part of the equation.

  6. Raha, I think we agree that the actions of the elected branches are relevant, but may not (always) be determinative.  However, the clearer the elected branch position on the topic, the more difficult it will be for the courts to disagree.  Although international law forbids it, Congress could declare an offensive war and create an armed conflict (I will post about Congress’s power to violate international law next week).  From Talbot v. Seeman (1801), “It is not denied, nor in the course of the argument has it been denied, that congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” This decision suggests that the AUMF conclusively establishes the existence of an armed conflict.

    Brian, the above comment clarifies why I mentioned the lack of action by Congress.  While it is true that the President may, acting alone, create an armed conflict.  Where he does not clearly do so, Congress’s view of things would seem to matter. 

    Marty, yes “hostitilities” is the relevant MCA term, which is why I worked it in it at the end of my post.  In my view, however, hostilities is a term of art.  They occur only in armed conflict, and armed conflict is essential to the government’s constitutional power to use military commissions to try law of war violations.  Were Congress or the executive branch (or both, pursuant to the MCA) to attempt to use law of war commissions beyond that, Jecker v. Montgomery (1851) (invalidating judgment of military prize court established in Mexico because it exercised jurisdiction constitutionally assigned to Art. III judicary) would, in my opinion, control.

    Jordan, I think the horse already left the Supreme Court’s barn regarding the existence of a non-international armed conflict between the U.S. and al Qaeda.

  7. Flanker, even assuming the ICTY is correct on this matter from the perspective of internaitonal law, we are here discussing the power to determine the existence of or establish an armed conflict in the U.S. constitutional system.

  8. Response…
    Flanker: art. 2 of the GCs would only be relevant to application of the GCs as treaties as such, not to the customary IHL reflected therein and in several other documents.  With respect to the conflict between the Taliban on one side and the U.S. (and several other countries) and NATO on the other, “international” is the only adjecteive that mirrors common sense — it is international in so many ways, including the migration of the de facto theatre of war into parts of Pakistan.  From a U.S. perspective, every time we send U.S. military into a foreign counry to engage in an armed conflict, we should recognize that it is international (internationalized by U.S. participation) so that our troops have combatant and pw status as well as combatant immunity for lawful acts of war.
    Does al Qaeda engage in “sustained and concerted military operations” and does it exercise control over territory within the meaning of Protocol II, art. 1(1)?  Does al Qaeda have the semblance of a government and control any territory as its own, within the meaning of traditional criteria for the existence of the minimal level of armed conflict, an insurgency?
    Kevin: what horse?  One can interpret the S.Ct. decision, opinions as recognizing that AT A MINIMUM common art. 3 applies — as it does as a matter of customary int’l law now even during an international armed conflict.

  9. Response… Sorry,
    I meant John, not Kevin — yet see the other exchanges in the prior posting.

  10. Marty (and John),

    “Hostilities” is defined in the Military Commissions Act to refer to “any conflict subject to the laws of war,”  10 U.S.C. § 948a(9).

    So at least for the purpose of the MCA, “hostilities” = “armed conflict.”

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