Judge Pohl: the US and AQ Were Engaged in Hostilities in 1775

Okay, I’m exaggerating.  But only slightly.  As Wells Bennett notes today at Lawfare, Judge Pohl has rejected al-Nashiri’s contention that the US and al-Qaeda were not engaged in hostilities (an armed conflict in IHL terms) at the time of the acts alleged in his indictment — primarily the attack on the USS Cole in 2000 — thereby depriving the military commission of jurisdiction over those acts. I have explained before (see here and here) why al-Nashiri’s argument is correct. Unfortunately, but completely unsurprisingly, Judge Pohl disagrees.  It is worth examining his four-page decision in detail, because it illustrates why the military commissions are so deeply and irremediably flawed.

Here is the first substantive paragraph:

Whether hostilities existed on the date  of the acts alleged to have been committed by the accused is as much a function of the nature of hostilities as any particular legally significant act by either the legislative or executive branches of government. Whether hostilities existed on the dates of the charged offenses necessarily is a fact-bound determination; moreover, whether a state of hostilities existed is as much a function of the will of the organization to which the accused is alleged to belong to as the U.S. government. In determining whether hostilities exist or do not exist, the enemy gets a vote.[1] Whether Al Qaeda, the organization of unprivileged enemy belligerents to which the accused is alleged to be a member, considered itself to be at war with the United States on the date of the alleged law of war violations is a factor among many to be considered by the trier of fact and is as relevant as any judgments made or withheld by the President or the Congress.

This is patently incorrect.  Whether a state is engaged in an armed conflict with a non-state actor is a purely factual determination, one that depends (sound familiar?) on the organization of the non-state actor and the intensity of hostilities between the non-state actor and the state.  Full stop. Whether a non-state actor believes it is “at war” with a state is irrelevant to that determination; it is not “a factor among many.”

But perhaps Judge Pohl is aware of legal precedent that I’m not.  After all, he footnotes his claim! So let’s see what the footnote says (emphasis mine):

“In connection with the plan of a campaign we shall hereafter examine more closely into the meaning of disarming a nation, but here we must at once draw a distinction between three things, which as three general objects comprise  everything else within them. They are the military power, the country, and the will of the enemy. The military power must be destroyed, that is, reduced to such a state as not to be able to prosecute the war. This is the sense in which we wish to be understood hereafter, whenever we use the expression “destruction of the enemy’s military power.” The country must be conquered, for out of the country a new military force may be formed. But if even both these things are done, still the war, that is, the hostile feeling and action of hostile agencies, cannot be considered as at an end as long as the will of the enemy is not subdued also…” Carl von Clausewitz, On War Book I Chapter 2 (1832) (emphasis added). In other words, whether the enemy has the will to make war is determinative of whether hostilities begin to exist, continue to exist, or have been terminated.

Yes, indeed: Judge Pohl’s only citation for the idea that a non-state actor can declare war against a state is an 1832 quote from Clausewitz about conflicts between states.  Had he chosen to do so, of course, Judge Pohl could have provided a slightly more relevant — and slightly more recent — citation, such as Quincy Wright’s widely-accepted conclusion that insurgents, “not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  Judge Pohl must have missed that one.

Onward to the next paragraph:

Congress, with the President’s concurrence, has impliedly made a political judgment regarding the existence of hostilities through its recognition of military commissions as a forum for adjudication of violations of the laws of war occurring “before, on, or after September 11, 2001…” 2009 MCA, §948d. Implicit in a plain-meaning reading of this statutory language is Congress’ recognition of the fact that violations of the law of war might have occurred during a state of hostilities existing prior to the attacks of September 11, 2001, and the United States Government had simply been slow to recognize the existence of a state of hostilities then existing between the United States and Al Qaeda and its affiliates and franchises. To wit, in World War II, hostilities began the moment the first bomb was dropped on Pearl Harbor, not the next day when Congress declared war.

This statement is what animates the title of this post. How do we know that hostilities could have existed in 2000, prior to the enactment of the AUMF?  Because Congress inserted the word “before” into the AUMF.  2000 is before 9/11, so hostilities could have existed in 2000.  QED.

Next paragraph:

Under the “wide deference” standard, the two political branches’ collective determination, evidenced by passage of the statute and its signing into law, that hostilities with al-Qaeda in Yemen commenced prior to the date of the first act charged against the accused in this case is entitled not to be second-guessed by the judiciary. As the political branches have authority to determine when hostilities have ceased, Al-Bihani at 875, so must they have corollary authority to determine when hostilities began. The political branches may make this assessment even when such a determination is not stated as a date certain, but rather is approximated by the use of the temporal language in the 2009 MCA’s jurisdiction provision – “…any offense made punishable by…the law of war, whether such offense was committed before, on, or after September 11, 2001…” 2009 MCA §948d.

Previous paragraph: hostilities “might have occurred” prior to 2001, as evidenced by the word “before” in the AUMF  This paragraph: hostilities “commenced” prior to al-Nashiri’s acts, as evidenced by the fact that Congress passed and Obama signed the 2009 Military Commissions Act, which gives the military commissions jurisdiction over acts committed prior to 9/11.  So much for the existence of hostilities “necessarily” being a “fact-bound determination”!

This is some fine trickeration.  Al-Nashiri’s argument focused, as Bennett notes in his post, on the fact that neither Congress nor President Clinton believed that the US was at war with al-Qaeda at the time of, or immediately following, the attack on the USS Cole.  But that “collective determination” is irrelevant, according to Judge Pohl, because 12 years later Congress enacted and Obama signed legislation that made vague reference to the possibility that members of al-Qaeda may have committed war crimes prior to 9/11.  Moving on:

Finally, if the President disagreed with the Convening Authority’s decision to refer this case for trial by military commission, he had ample authority to countermand the Convening Authority’s decision by requiring the Secretary of Defense to order the charges dismissed….  If the President had disagreed with the implicit determination evidenced by the charges against the accused, he could have taken action. That he did not evidences his concurrence with Congress’ determination expressed through the 2009 MCA that certain violations of the law of war occurring prior to September 11, 2001, could be the subject of military commissions proceedings.

Get that?  Obama didn’t commit political suicide by directly intervening in an ongoing military-commission prosecution involving a defendant who blew up an American warship, so that means he must have agreed with Congress’s kind-of, sort-of determination that hostilities existed — we’re now well past the “might have occurred” stage — between the US and al-Qaeda prior to 9/11.

And last, but certainly not least, Judge Pohl’s findings:

Question of Fact. Whether hostilities existed between Al Qaeda and the United States  on the dates of the accused’s alleged acts is a question of fact and an element of proof, which must be carried by the government.

A question of fact — but not the kind of fact that would require determining whether there were actual hostilities between al-Qaeda and the US when the acts in question occurred.  No, the kind of fact that requires determining whether Congress and the President believed such hostilities existed. And not the kind of fact that requires determining whether Congress and the President believed at the time of the acts in question that such hostilities existed.  No, the kind of fact that requires determining whether at any point in time since then Congress and the President believed that such hostilities existed.

Issue of Law. (1) Whether hostilities existed between Al Qaeda and the United States on the dates of the accused’s alleged acts is a jurisdictional question subject to purely legal determination under a “wide deference” standard;

(2) The political branches have made a determination that hostilities existed between al Qaeda and the United States prior to September 11, 2001 and on the dates of the alleged offenses, evidenced by the passage of the 2009 MCA, the referral of charges in this case, and the litigation of this case since arraignment; and

(3) The political branches’ collective determination is entitled to judicial deference by this commission.

Just kidding that the existence of hostilities is a question of fact.  It’s actually a “purely legal determination.”  So how do we know there was an armed conflict between al-Qaeda and the US at the time of al-Nashiri’s acts?  Because he’s being prosecuted for those acts in a military commission, of course! (Strap, meet Boot.)  The “factual” issue is whether the hostilities existed. And that “factual” issue must be resolved against al-Nashiri as long as Congress and the President have concluded that hostilities did, in fact, exist.  And we know that (this) Congress and (this) President have concluded that hostilities did, in fact, exist because they are prosecuting him in a military commission that only has jurisdiction over acts that took place during hostilities.  Again, QED!

Judge Pohl’s decision is one of the worst ever issued by a military-commission judge.  And that, my friends, is saying something.