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

by Kevin Jon Heller

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.


8 Responses

  1. Really, though, isn’t the US government’s opinion the only one relevant on the issue?  Even if non-state parties are incapable of declaring war, Bin Laden’s declaration in 1996 is surely sufficient for the United States to consider unilaterally there to exist a state of war, as declared by the United States.
    I don’t find anything particular exceptional about back-dating a declaration of war to prior events, after all, one would hardly expect the Japanese to be completely absolved from war crime liability on say, the Pearl Harbor attack just because the declaration of war occurred the day after.

  2. Kevin: you are entirely correct and we have pointed out before that under international law (which is supposedly among the laws of the United States, and laws that the President is constitutionally bound faithfully to execute) the United States simply cannot be at war or in an armed conflict with al Qaeda as such.  For attention to the legal criteria, see, e.g., http://ssrn.com/abstract=2165278
    There are many decisions of U.S. federal courts that have applied the laws of war against members of the Executive branch, including the famous Supreme Court decision in The Paquete Habana in 1900 (and up again in 1903) — and that opinion addressed the laws of war (contrary to the majority opinion in Sosa in 2004) and applied the laws of war to void an Executive seizure of alien vessels abroad during time of war in contrast to the Executive views about the content of the laws of war.  Our courts have often noted that whether the laws of war apply, to whom, and how are legal questions and that the courts, although they pay some deference to Executive views, are not bound by Executive determinations.  Several cases, including The Paquete Habana, have second-guessed the Executive.  For the many cases that recognize that the President and his entourage are bound by the laws of war, see, e.g., http://ssrn.com/abstract=1485703  (at pages 240-45).
    I provide these cites in case some of our readers are preparing an appeal, etc.
    As often stated in this forum, this does not mean that the United States cannot engage in lawful measures of self-defense against non-state actor attackers like al Qaeda. The self-defense paradigm is different.

  3. While the decision by Judge Pohl may not meet some individual’s standards, it is still the right answer. We know from the American Military Tribunal of 1948 (U.S.  v. von Loeb) that the beginning of a condition of armed conflict  between parties is a ‘unilateral operation’, and it can begin by a declaration of hostilities prior to the first shot being fired or by taking the first shot.  Osama’s declaration of war in 1996 or the first shot fired in sinking the USS Cole in 2000 easily qualify as the beginning of an ongoing armed conflict between the U.S. and AQ. 
    It is not necessary that the U.S. considered itself in a armed conflict when al-Nashiri committed his acts, it is only necessary that AQ believed it so.  (And its subsequent actions proves that it did.)  The U.S. , while politically slow to accept Osama’s declaration as fact, did finally accept the fact that it was engaged in an armed conflict and has acted on that premise ever since. 
    Some may say that the bombing of the Cole was a discrete act of terror , but  the facts would not bear that out.  It can be shown that the bombing was simply a part of a protracted plan of armed violence perpetrated against the U.S. by AQ and its agents.  And that protracted plan of violence also lends support to the fact that the U.S. was correct in declaring that the acts of al-Nashiri took place during a time of open hostilities.
    The ICTY in Tadic declared that “armed conflict exists whenever there is. . . protracted armed violence between a governmental authority and organized groups . . .”.  I would think that almost 13 years of AQ planned and carried out armed violence against the U.S. would qualify under any definition as a protracted armed conflict. 
    Therefore, as the actions taken by al-Nashiri  can easily be seen to have occurred during a declared hostility or as the first round fired in an undeclared hostility and as the authority given to the tribunal is to try those cases that occurred during the conduct of the current hostilities, the court correctly determined that it has the jurisdiction to try al-Nashiri.

  4. 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.” ”
    Nonconcur.The issue isn’t whether (or not) a non-state actor or a state actor _believe_ they are at war or not; the issue is whether they _wage_ war or not.

  5. The key for me is  Justice Robert Jackson’s April 13, 1945 speech:
    The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty.  If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.”
    Over at lawfare the presumptive applicability of the Constitution decision is also there.  My problem is that the piecemeal approach in US courts operates from a basic background which is that the Constitution is operative in the USA.  The debate in the USA is about whether this or that provision of an operative Constitution is controlling in a certain space.  At Gitmo, there is a two level debate.  The first is whether or not the Constitution is operative down there.  The second level is whether this or that Constitutional provision is to be applied.  It seems to me that these are two separate types of analysis and the judge is leaving himself the possibility to say that x provision would be applicable as it is in the USA of a but the Constitution is inoperative as to that here.  The judge is leaving open three options (operative but inapplicable, inoperative and inapplicable, operative and inapplicable) and only one setting (operative and applicable) in whcih the Constitution reaches.  Maybe the problem is the Supreme Court in Boumediene only doing operative and applicable for habeas as part of the judicial economy vision with the downside of leaving open so much indeterminate space.  I see saying the Constitution  is operative in the space as not being an advisory opinion but being an opinion that helps shape the entire way that these lawyers are going to argue this case.  Very heavy stuff.

  6. MG,

    War crimes can only be committed in armed conflict.  The existence of armed conflict is determined objectively; whether a party to the conflict believes they are engaged in an armed conflict — or believes that they are not — is irrelevant.  (To avoid situations like Vietnam, which the US always described as a “police action.”)  So it doesn’t matter whether the US considered itself at war with AQ at the time of al-Nashiri’s actions (which it didn’t, as his lawyers pointed out; Pohl is simply inferring that the US has decided retroactively that it was); al-Nashiri could only commit a war crime if the Tadic test was satisfied in 2000 — which I think it clearly wasn’t.

  7. Kevin is correct that AQ is simply not an insurgent within the meaning of customary international law using criteria recognized in CIL or even with respect to the criteria set forth in Geneva Protocol II, art. 1 para. 1, and insurgency is the lowest level of armed conflict.  This is addressed in my article (noted above) as well as the fact that Tadic got it wrong and, in any event, its test was shifted on remand by the Trial Chamber and in subsequent decisions within the ICTY (see my article).  Also, the words and phrases used in the Tadic case have to be interpreted — and with customary international law as an interpretive aid.  For example, “protracted armed violence” has a special meaning under international law.
    Note the criteria set forth in Geneva Protocol II, art. 1(1): “armed conflicts,” “organized armed groups,” “under responsible command,” “exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations,” “and to implement this Protocol.” For several reasons noted in my article, AQ simply does not meet the test.  This is especially the case with respect to the attack on the USS Cole — no control of any territory, much less “as to enable” AQ “to carry out sustained” or even “concerted” “military” operations. 
    As noted in my article, there are also dangers with respect to claims that the US is “at war” with AQ — note that during a state-to-state war, for example, the USS Cole, the Pentagon and US soldiers would be proper military targets and the attack by combatants (who are members of the regular armed forces of a party to an international armed conflict) would be entitled to combatant immunity.
    Yet, if a member of AQ was picked up in a real theatre of war (e.g., in Afghanistan) such person would be a civilian protected under GC, but could be charged with any violation of the laws of war that occurred in the theatre of a real war.

  8. AQ is not an insurgent only if one looks at its operations at the micro and not at the macro level. It might not meet the CIL standards if one tries to view each of its actions as discrete events limited to the specific territories that that specific cell operated out of.  But AQ is not your historical insurgent.
      CIL fixates on the control of a discrete fairly contiguous piece of property by a hierarchy that resembles the western idea of a centralized government that has existed in Europe and the US over the recent past. But that concept is not the exclusive concept of a government or territory.  AQ is not looking simply for a few acres to reign over, its goal is global in nature, macro not micro.  Therefore its insurgency is a global insurgency and not one limited by geographic boundaries. 
    But, just because its operations are global does not mean it does  not control territory.  It does. think Diabaly Mali and its former training camps on the Pakistan/Afghanistan boarder and other small satellites (or if you prefer in European terms ‘colonies’).  These satellites in the  whole give it a territory, a base from which to recruit, train, plan and facilitate continuous armed operations on a worldwide battle front. 
    Today’s technology allows the leadership and the rank and file membership of AQ to be highly dispersed, an insurgent no longer requires large tracts of land to plan and train for operations it can be done by fewer people at smaller venues.  And just like crystals of salt spread out on a sidewalk can eventual remove the covering snow, so too can small satellites of insurgents spread among the Nations of the world slowly melt away the existing governments.
    Remember, AQ is not looking to control a single nation, it looks to control all areas of the globe.  AQ also has a control structure that plans, oversees and conducts operations. While it may be diffuse and dissimilar to a standard US Military structure it does have the ability to recruit, train, equip, plan, monitor, and carry out operations in its area of operations. 
      For that matter the limiting ‘theater or war’ idea has no place in AQ’s war.  Its  war has no battle front or secure rear.  There is no single area of conflict. AQ and those affiliated with it have conducted operations all over the globe, from NYC to Europe to Afghanistan to the Philippines.  So no matter where al-Nashiri acted or was apprehended he can be said to have acted in a theater of war.
      And as for the time span that occurs between major AQ actions that some would say disproves the continuous operations requirement of CIL, we know from at least WW II that the planning of armed conflict is an essential part of the conduct of armed conflict (Nuremberg trials) so the fact that it may be several months between events does not mean the conflict is not sustained and ongoing, it may simply be a lull for planning purposes or other reasons (Korean war?). 
      Look, the US has been hunting AQ since the mid nineties for what it called acts of terror but what AQ called acts of war.  In 1998 AQ bombed US Embassies in Kenya and Tanzania and the US responded to this armed attack by sending about 75 cruise missiles into AQ territory near the Afghanistan Pakistan border.  That missile strike was not just a response to the embassy bombings but was also carried out because the US believed that AQ was planning more operations against it in a sustained and continuing Jihad. So the 2000 attack on the Cole can easily qualify as just one more event in AQ’s ongoing hostilities with the US.
      I realize that the US is loath to admit that it is in a ‘war’ with AQ because it would have to afford AQ rights it would rather not. But let’s be blunt, if it walks like a duck, talks like a duck and smells like a duck it is probable not a cow.  So, even if some believe that Tadic got it wrong, AQ has carried out a sustained offensive,  does control territory (in some form) and does have a hierarchy that can conduct complex activities and perform governmental functions.   
      I say let the Tribunal try al-Nashiri, but if they do, then the US needs to accept that it is in a War and therefore it should obey all the rules of war.  And let’s stop playing games by saying only States can declare war, that’s a concept of pure fiction.

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