Conspiracy and the New Hamdan Argument

by Jens David Ohlin

Cross-posted at LieberCode.

I have written before about the Government’s new position in the Hamdan case.  As you will recall, Hamdan was convicted by a military commission for providing material support, sentenced to five and a half years, and released for time served.  He is now appealing his conviction.

The latest government brief before the D.C. Circuit represents a significant change in theory regarding the justification for military commissions.  In the past, it was widely assumed that Congressional enactment of the Military Commissions Act was based on their constitutional power to define and punish violations against the law of nations.  Now the administration is adding an additional basis: the power to punish offenses traditionally tried before military commissions pursuant the U.S. common law of war.  This power stems from the penumbra of Congress’ war-making powers in Article I.

There are a lot of implications to the new analysis, not all of which I have fully digested yet.  Under the Define and Punish Clause, Congress is assumed to be tying itself to an evolving body of law – international law – whose content is increasingly complex, sophisticated, and refined.  In contrast, the new penumbral argument ties the Congressional power to a largely static body of law – military commission law – because for the most part the United States didn’t use military commissions between the end of World War II and 9/11.  Furthermore, many of the World War II military commission cases like Quirin predate the Geneva Convention, Common Article 3, and all of the great advancements of international criminal law.  So the new theory feels a lot like getting into a time machine and emerging with the law of war as it exists in 1945 (or even during the Civil War), not as it exists today.

Aside from the exact status of this “U.S. common law of war” – a term that I am a bit skeptical about — I want to raise another issue here, and that’s the status of conspiracy as an inchoate offense under this new theory.

In the original Hamdan case, a four-justice plurality concluded that conspiracy was not a violation of the law of nations and therefore could not be prosecuted before a military commission.  Kennedy joined the plurality as to the final outcome of the case but did not join the conspiracy section of the opinion.  This left the status of conspiracy in some question, especially given the recent changes in the Supreme Court’s composition.

However, if the D.C. Circuit or the Supreme Court were to adopt the government’s new theory of military commissions, I think the crime of conspiracy would definitely withstand judicial scrutiny.  In fact, it would be a much easier argument.  Under the government’s proposed structure, the question is whether there is significant precedent under U.S. law for punishing certain crimes before a military commission during wartime.  In contrast, the problem with conspiracy according to the Hamdan four-justice plurality was that it had been largely rejected at Nuremberg and subsequent international conventions and tribunals (with the exception of conspiracy to commit genocide).  Under the new scheme, however, the international angle would be completely off the table.  Conspiracy’s status as a distinctively common law criminal concept would no longer be fatal to its application at a military commission.  In fact, conspiracy’s deep roots in the common law might even be an asset under the new analysis.

Unfortunately, the D.C. Circuit Hamdan case won’t deal with conspiracy directly, since he was acquitted of that charge and it is therefore not on appeal.  But I would think that another case down the pipeline will certainly address this question.

8 Responses

  1. Response…
    And what would be the Exec. attempted justification for the extraterritorial reach of a so-called “U.S. common law” that quite obviously could not be binding under customary laws of war or treaty-based laws of war or other customary or treaty-based law on the foeign accused?  No jurisdiciton still.

  2. Jens and Jordan,

    I have never finished the companion article to my JICJ article explaining the U.S. “common law” approach to punishing war crimes.  However, Jordan is on track regarding the focus of the article — which still in limbo. 

    First, it seems to me, the U.S. common law of war is inherently territorial, as Jordan indicates.  However, there are potentially applicable principles to support the extraterritorial application of domestic law.  Additionally, the punishment of common law crimes or prescribed security measures during occupation indicates that the territorial limit is not absolute.

    The key then becomes whether the nullum crimen sine lege principle of international law is satisfied.  Here is an area where contemporary notions of international criminal law have created confusion.  Must conduct be expressly defined as a crime by customary or conventional international law or must punishment only be consistent with appicable international law to satisfy this principle.  The modern ICL lawyer would definitely argue the former.  Before the grave breach regime of the GCs, however, didn’t states punish enemy violations of the laws of war?  It seems so.  It was certainly U.S. practice, at a time when U.S. practice was designed to follow, not to set the course of, international law. 

    The post WW-II U.S. field manual indicates that “every violation of the law of war is a war crime” and Artice 18 of the UCMJ has long extended the jurisdiction of general courts-martial to adjudge “any punishment permitted by the law of war.” (emphasis added)  The Geneva Conventions of 1949 altered the situation by requiring punishment of and establishing universal jurisdiction over grave breaches.  What happened to other, lesser law of war violations?  Did the prior prevailing custom, assuming it existed as the U.S. believed, change?

    I have thoughts on these questions, but perhaps I should just finish the article to put them out there! 

  3. Response…
    But the prior practice was, yes, to prosecute enemy “violations of the laws of war”  Even the 1863 Lieber Code was recognized as reflecting current customary laws of war in the U.S. Army Digest of Ops.
    I still think that there is no case for extraterritorial jurisdiction over those held at GTMO under such a lame theory.

  4. I think the arguments in this space about the crimes under which these persons are tried have had an effect. 

    The government is coming to say more transparently what people have said in this space for a while (KJH and others)- 1) the crimes being charged are under the US common law of war which is not the same as the international law of war and 2) that these people were not on US territory committing the crime and owed no allegiance whatsoever to the United States to make them subject to a US common law of war. 

    Should the US laws of war apply to the 9/11 attacks on the theory that the law at the place of the crime including the US laws of war should apply to a crime done on US soil but ordered/commanded from abroad? 

    Next for those being tried for crimes that were committed abroad, does the US laws of war apply to displace the international laws of war or domestic law of where the person was picked up or did the crime – because we want it to (i.e. act of naked power).  Even if the judiciary goes along with that, it is fairly elemental that no state can extract itself from its international obligations under its domestic law.

    So what we see is the next incremental step since the President’s Military Order in the process whereby the effort is to change the crime to make these people do the time – i.e. create a conviction machine.  In doing this there will be efforts to say that we are in the tradition of Nuremberg. People will cite selectively to Justice Jackson’s the Reality of the Law of Nations speech from 1945 to try to make us think that we are in a grander tradition than what we are really doing. 

    What we are doing is creating ex post facto laws and trying to get court decisions that allow this so that we can set up the military commission prosecutions of KSM and the other 9/11 types – preferably just before the elections in November – with a series of precedents in that space that cover every eventuality to assure a conviction.

    For those at GITMO not going to be tried and who were picked up in Iraq, now that we are at the end of hostilities, isn’t there a question about when they are released?

    Just saying.


  5. Ben and Jordan,

    Should Yamashita have been tried by military commission?  If so, how does that fit with your views?  Were the “subsequent proceedings” to the Nuremburg IMT in Germany acts of naked power or necessary and appropriate justice in accordance with prevailing international legal principles?  All occurred before the notion that international law independently imposed or required criminal punishment for certain violations of the laws of war.  Certainly, some of our allies had ex post facto/nullum crimen concerns about these WW II events.

    Additionally, a point of clarification for readers, it is not a question of whether the U.S. common law of war applies to those detained at GTMO because they are at GTMO.  The acts of those facing military commissions occurred elsewhere.  The focus is on whether the U.S. common law of war applied to the acts in the context in which and at the location where they occurred. These are difficult questions that should not be oversimplified.

  6. John,
    Been running around a bit so sorry for the delay in coming back.  To me the question is more about the judicial forms and norms.
    Yes, Yamashita could be tried by military commissions back then in Manila where courts were not open in an occupied space as with the many military commissions in Germany after the war.
    Was the process Yamashita received a fair proceeding is the greater question as was noted in the dissents at the US Supreme Court.  I thought the standard he was found guilt under was a good standard that should have stood the test of time with Medina and Calley at My Lai – but was not applied there from my memory.
    As to Nuremberg, the three choices were to take them out and shoot them (Churchill), show trial (Stalin), or what we ended up with.  It was naked power of the allies to create the IMT, the question again was the process – crimes and process.  Please see KJH on his book and studies of Nuremberg for specific questions but, for me, at the IMT one of the most important aspects was that the defendants could be represented by whomever they wanted.
    The nullen crimen issues were thought about – I really love the ideas of a Wall Street lawyer named Chandler who supposedly created the logic link from Kellogg-Briand to get to aggressive war (though no one was ultimately convicted on that charge) that Roosevelt accepted.
    I can live with necessary and appropriate – but the question I keep coming back to is whether THESE military commissions are necessary or appropriate.  With each permutation since the PMO I say they are mere iterations of a fundamentally flawed process which is tied to the fact that we decided to torture people who we are seeking to try under it.  The Bush lawyers made a hash of it and now the Obama lawyers are trying to put lipstick on the pig.  I say we are better than that and should put this into our federal courts because we made such a hash of it.  In the light of day in our federal courts, let it all come out.
    We should not hide these things just to protect reputations or for political expediency by those who are more callow.  We should expect more of ourselves – as much as we expect of our soldiers – if our values have any meaning besides platitudes for political consumption in election years.
    And, just to keep things in mind, please take a look at the pictures in Alice Kaplan’s The Interpreter with regard to Plot E.  The question is always about whether we are creating Plot E’s.  Altenburg said there was no excuse for what happened to those folks buried in Plot E but that we are different now.  That is always the question – are we that different?
    By the way, one of the guys executed and buried in a numbered grave at Plot E was Emmitt Till’s dad.  Emmitt Till, you remember, was lynched down South.
    The past is always with us (William Faulkner).
    I agree with GITMO law not being the applicable law for crimes that occurred in other places.
    The problem with the military commissions seems to me that the US common law of war is not allowed to be applied there under the statute as drafted.  In a court proceeding in New York for 9/11 I could see how we could get there without much trouble though I suspect there is sufficient federal law to nail 9/11 conspirators without having to resort to the US common law of war.
    All of this seems to be bad improvisation on a very serious matter which is quite disheartening.

  7. Response…
    Yes, Ben and John, Gen. Yamashita was tried for the war crimes connected with his dereliction of duty or leader responsibility. That is far different than trying someone for what Ben recognizes as some sort of ex post facto U.S. common law that presumably can in no way be extraterritorial.  What is wrong with DOJ? Are there too many left-over-lawyers there?

  8. John,
    You said:
    “Additionally, the punishment of common law crimes or prescribed security measures during occupation indicates that the territorial limit is not absolute.”
    The law applicable in occupied territory is very much territorial in nature. It applies over the entirity of the area under the control of the occupying military. The establishment of military government in an area (or martial law in domestic territory) is what previously established jurisdiction over such “common law war crimes” as “aiding guerrillas” and the like. (Which is really the same thing as saying that persons in such territory owe a duty to the occupier to not engage in activity dangerous to its forces.) I’m not sure that extending this concept to areas where there is no semblence of military control at the time the violation took place is a good idea. I suppose that’s why all violators must be considered “combatants” who are members of enemy “armed forces,” since that provides a separate jurisdictional hook.

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