Circling Back to that Existence of Armed Conflict Discussion

Last week saw a set of posts, across the law-and-security blogs, about whether an armed conflict existed at the time current commission defendant Abd Al Rahim Hussayn Muhammad Al Nashiri was allegedly involved in planning the October 2000 bombing of the U.S.S. Cole. See, e.g., Frakt, Vladeck, Heller, and Margulies. While I’ve written about this at length elsewhere, after reading the posts, I find myself disagreeing (at least in part) with pretty much all of my friends on the question of who can/must decide the answer to the existence-of-armed-conflict question. Here’s my thinking.

First, in the context in which the issue arises in U.S. military commissions, the question is one of both law and fact. Why a question of law? Because as a matter of U.S. domestic law, the military commissions’ jurisdiction extends only to persons subject to trial under the MCA, namely “alien unprivileged enemy belligerents,” a term defined by the statute to include three types of defendant. The first two include defendants who “engaged in hostilities against the United States or its coalition partners,” or who have “purposefully and materially supported hostilities against the United States or its coalition partners.” In cases involving such defendants, unless the defendant is alleged to have engaged in or supported “hostilities” as defined by the law of war, the commissions lack jurisdiction to proceed. The third category of defendant over whom the military commission may have jurisdiction – an individual who was “a member of Al Qaeda” when the alleged offense was committed – does not by its terms require a finding of hostilities. But even where the existence of hostilities is not part of the statutory requirement for jurisdiction, commission jurisdiction remains subject to limits imposed by the U.S. Constitution. As the Supreme Court has noted, military commissions may substitute for civilian trials or traditional military justice processes to prosecute only those acts “incident to the conduct of war,” for events occurring “within the period of the war.” In this setting, commissions are only constitutionally permissible when the offense alleged was “committed … during, not before, the relevant conflict.” The need to consider the existence of war in some fashion is thus unavoidable in establishing commission jurisdiction.

But with regrets to commission defense counsel, the MCA also, separately, presents the existence of hostilities as a (again separate) question of fact. For the MCA also provides that the war crimes offenses it enumerates are triable by military commission “only if the offense is committed in the context of and associated with hostilities.” It is thus necessary to prove the existence of hostilities as an element of each charging offense. However capable a jury may or may not be of making this determination (and I’d give juries, even commission juries, at least as much credit in making this factual determination as I’d give them in making other complex factual determinations), the requirement that it be proven to a jury beyond a reasonable doubt is one we should embrace if for no other reason than that the U.S. Constitution requires that all elements of criminal offenses be proven by the prosecution beyond a reasonable doubt. (See, e.g., Apprendi v. New Jersey and many other Supreme Court cases on this point.) True, the Supreme Court has never squarely held that any part of the U.S. Constitution other than the Suspension Clause applies to aliens at Guantanamo. But I think it both consistent with Court precedent (Boumediene at the least) and enormously important to whatever legitimacy commissions may retain that such basic rights are recognized to apply in these war crimes trials.

So could the presiding officer (the commission equivalent of a judge) determine “hostilities” or “the relevant conflict” were sufficient to establish its jurisdiction, and the members then conclude after trial that the prosecution had not succeeded in proving the existence of hostilities as an element of the offense? In principle, I suppose, yes. But while the executive might plausibly (though I think wrongly) argue to a court that he is entitled to interpretive deference of some sort on whether “hostilities” exist within the meaning of the MCA jurisdictional provision (which directs us, I agree, to the multi-factor test set forth in Tadic and elsewhere), there can be no such plausible claim of deference in establishing the existence of hostilities as an element of the offense. In any criminal prosecution, the Constitution insists that an independent jury, not the executive, serve as a neutral finder of fact. Ceding to the executive the effective power to determine the presence of this circumstance (by the court deferring on the existence of key facts, or by making the executive’s own statements of the existence of hostilities at the time dispositive of their existence) would present a grave constitutional question, effectively relieving the prosecuting power of its obligation to prove a key element of the defendant’s guilt. To my knowledge, the Court has never tolerated such an outcome (in civilian or military trial, in wartime or out), and it can’t be the right answer here.