May the U.S. (Still?) Use Military Commissions for Crimes in Iraq?

Over at Lawfare last Friday, Bobby Chesney commented on a NY Times article reporting that military commission charges have been initiated against Ali Musa Daqduq. Chesney describes Daqduq as “a Hezbollah member involved in an attack on American forces in Iraq in which the attackers disguised themselves as American soldiers and Iraqi police and in which several captured American soldiers were murdered post-capture.” As Bobby notes, Daqduq has been charged with various crimes, including perfidy, murder in violation of the law of war, material support to terrorism, and others.

The Times piece voiced concern about the fact that Daqduq is the first non-al Qaeda and non-Taliban defendant charged by the commissions. Bobby swept that concern aside by observing that a commissions proceeding against him is perfectly within the terms of the Military Commissions Acts of 2006 and 2009 (MCA). While I agree with that conclusion, I think Bobby glosses over an important underlying legal issue.

The reason that the proceedings against Daqduq are potentially problematic is because it is not clear whether using the MCA in this way in consistent with constitutional limits on the jurisdiction of military commissions. As I have explained here before, the Supreme Court has consistently held that military commissions are a part of the war powers of the U.S. government.  The Supreme Court explained in In re Yamashita,

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.

Because Yamashita had been tried after hostilities ended, the Court considered whether the government’s war powers still existed at the time of the commission. Importantly, the Court said,

The war power, from which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has recognized, the evils which the military operations have produced.

We cannot say that there is no authority to convene a commission after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace has been officially recognized by treaty or proclamation of the political branch of the Government….

The extent to which the power to prosecute violations of the law of war shall be exercised before peace is declared rests, not with the courts, but with the political branch of the Government, and may itself be governed by the terms of an armistice or the treaty of peace.

Critically, the Court followed this with a brief discussion in which it considered only the surrender and potential terms of peace in the war with Japan, the conflict in which Yamashita’s war crimes occurred.

This discussion emphasizes the issue raised by Daqduq’s impending military commission. It is whether the government may (still?) use military commissions to try alleged war crimes committed against it during an armed conflict in Iraq. The Yamashita decision does not appear to have given the political branches a blank check to use military commissions at any time relative to a completed armed conflict. In fact, the absence of such unlimited authority is what led Congress to pass the War Crimes Act (WCA). Without the WCA, the U.S. government had no domestic tribunal invested with jurisdiction to try war crimes after its participation in a specific armed conflict had fully and completely ended.

For these reasons, whether Daqduq’s commission may be properly convened would seem to depend upon, at the very least: (1) the continued existence of an armed conflict in Iraq; (2) the relationship of the U.S. to any continuing or recently completed armed conflict there; and possibly (3) the terms under which the U.S. withdrew its forces from Iraq. These are certainly interesting questions that require close analysis.

The Times article also indicates that Daqduq’s commission will be used as a basis to request his extradition. It is important to note that this raises a separate question. An act of perfidy that results in death is a grave breach of Additional Protocol I to the 1949 Geneva Conventions, and is arguably an international war crime established in customary international law applicable to both international and non-international armed conflict. (Both the ICC Statute and the ICRC Commentary indicate that this is the case.) Thus, it would seem that Iraq has an international obligation to either prosecute Daqduq or transfer him for prosecution. The questions I have here raised surrounding the jurisdiction of his pending military commission are solely matters of domestic law that do not impede this duty.