How to Get Quirin Right When Quirin Was Wrong

How to Get Quirin Right When Quirin Was Wrong

On Monday, the defense in the Al Bahlul case filed their reply brief. The case is important because it squarely presents the issue that was left hanging after Hamdan, i.e. whether the military commissions have jurisdiction to try inchoate conspiracy. It also raises the far deeper question of whether the jurisdiction of the military commissions is limited to offenses against the law of nations (the international law of war), or whether the military commission’s jurisdiction to try law of war offenses includes domestic offenses as well. The government has repeatedly argued in the past that historically U.S. commissions were used to try violations of the common law of war, such as conspiracy. If that argument holds water, then it does not really matter whether inchoate conspiracy is an international offense or not.

There has been a lot of commentary on this issue, and it seems to me that the heart of the dispute has to be Quirin, the German saboteurs case during World War II. In that case, the petitioners were prosecuted before a military commission after landing in the U.S., burying their uniforms, and setting afoot with orders to commit acts of sabotage against strategic installations. They were convicted by military commission and appealed to the Supreme Court.

The problem with the Quirin precedent is that the Supreme Court probably assumed that spying and sabotage were international offenses, which they are not. The proper understanding of the situation, which was correctly identified by Baxter in his famous article, was that the belligerents in Quirin were not entitled to the privilege of belligerency and therefore liable for prosecution under domestic law. But being unprivileged and subject to domestic prosecution is not the same as committing an international offense.  For what is worth, the best reading of Quirin is that the Supreme Court conflated these two situations:

By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time of war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

This specification so plainly alleges violation of the law of war as to require but brief discussion of petitioners’ contentions. As we have seen, entry upon our territory in time of war by enemy belligerents, including those acting under the direction of the armed forces of the enemy, for the purpose of destroying property used or useful in prosecuting the war, is a hostile and war-like act. It subjects those who participate in it without uniform to the punishment prescribed by the law of war for unlawful belligerents. It is without significance that petitioners were not alleged to have borne conventional weapons or that their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States. Paragraphs 351 and 352 of the Rules of Land Warfare, already referred to, plainly contemplate that the hostile acts and purposes for which unlawful belligerents may be punished are not limited to assaults on the Armed Forces of the United States. Modern warfare is directed at the destruction of enemy war supplies and the implements of their production and transportation quite as much as at the armed forces. Every consideration which makes the unlawful belligerent punishable is equally applicable whether his objective is the one or the other. The law of war cannot rightly treat those agents of enemy armies who enter our territory, armed with explosives intended for the destruction of war industries and supplies, as any the less belligerent enemies than are agent similarly entering for the purpose of destroying fortified places or our Armed Forces. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment.

 

The Quirin decision is notoriously difficult to read because the court is inexact with its language. It appears to me that the Court assumed that an unprivileged belligerent who commits an offense out of uniform would be guilty of an international offense — a conclusion that does not follow. In reality, spying and related offenses are not, and were not, international offenses, but where offenses against domestic law, albeit ones that are mirrored in some way in almost every nation.

Herein lies the problem: How do you correctly interpret Quirin when Quirin‘s jurisdictional theory is built on a mistake? In my view, the correct reading is that Quirin stands for the proposition that military commissions are limited to prosecuting international offenses because that is what the Supreme Court believed spying to be. The fact that spying is a domestic offense does not, and should not, transform its holding into a much broader jurisdictional theory: that military commissions have jurisdiction over domestic offenses as well. True, the Supreme Court in Quirin upheld the military commission’s jurisdiction over spying, and spying is a domestic offense, but in reality the court was upholding the jurisdiction over spying-qua-international-offense, a category that unfortunately is a null set.

The defendant’s reply brief does not take this line. Rather, the defense makes the much simpler argument that spying was indeed an international offense, and that both the government today and Baxter got this wrong.  Here is the crucial paragraph in Al Bahlul’s brief:

Regardless of this article’s scholarly merits, Quirin is the authoritative law
in this case. And regardless of whether spying’s status changed after the Second World War, Quirin had a wealth of precedent and international legal authority
behind it in 1942. Lassa Oppenheim, International Law 2:223 (1921)
(“Oppenheim”) (“persons committing acts of espionage or war treason are – as will be shown below – considered war criminals and may be punished[.]”), Supp.App. 53; Henry Halleck, International Law 1:628-29 (1908) (“Halleck”) (“The act of spying is an offence against the laws of war alone; it is no crime in time of peace”), Supp.App. 36-37; George Davis, Outlines of International Law 241 (1887) (including spying within the “Crimes and Offences against the Laws of War” and a “crime[] at International Law[.]”), Supp.App. 13-14; Winthrop, at 770 (“By the law of nations the crime of a spy is punishable with death.”), Supp.App. 89; M. de Vattel, The Law of Nations 375 (1758) (describing spying as a form of treachery), Supp.App. 5; Military Commissions, 11 Op. Att’y Gen. 297, 312 (1865)
(“Infractions of the laws of nations are not denominated crimes, but offenses. …
[Acting as] a spy is an offense against the laws of war”); Hague Convention (IV)
Respecting the Laws and Customs of War on Land and Its Annex, Oct. 18, 1907,
36 Stat. 2277, arts. 29-31 (regulating the punishment of spies). In fact, the very
first spying statute, passed in 1776, stated that spies should “suffer death according to the law and usage of nations.” Supp.App. 49-50.

While this is a conceptually clean argument, I don’t find it persuasive. Oppenheim’s quote simply asserts that spies are criminals without labeling the offense as domestic or international; Halleck too refers to it as an offense against the laws of war without calling it an international offense, the issue at bar here. Winthrop refers to it as a rule of the law of nations, although the quote does not say whether the offense itself is international or simply whether the law of nations dictates that spies are unprivileged (and by extension liable for punishment of domestic crimes), which is a far different matter. Vattel refers to it as treachery which again doesn’t speak to the classification issue. Finally, the Hague Convention regulates the manner in which spies will be punished, which again does not logically entail the crime’s classification as an international offense. That leaves the Davis quote as the only one that directly speaks to the international nature of the offense.

So my argument is different from the government’s argument and different from the defendant’s argument, although in result I side with Bahlul. Quirin stands for the proposition that military commissions prosecute international offenses, but not because the offenses in Quirin actually were international offenses, but simply because the Supreme Court (incorrectly) assumed that to be the case. And I think this mistake (conflating international offenses with unprivileged conduct violating domestic law) is an easy one to make and one that was more common in the past than it is today. Interpretation demands that we find the deeper principle in Quirin, and that is that military commissions prosecute international offenses.

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Jordan
Jordan

The war crime that the Supreme Court addressed in Quirin can be considered the one that pertains today: being out of uniform while committing “hostile acts involving destruction of life or property,” e.g., if a combatant is out of uniform while engaging in combat. The error in Quirin, at least as we consider the issue today, involves the question whether a combatant can become an unprivileged fighter by being out of uniform. U.S. soldiers often fight in camouflage and should not, thereby, loose combatant status and combatant immunity for lawful acts of war. Combatant status, at least today (as under the Lieber Code — so soons as one takes the oath, etc.), hinges on membership in the regular armed forces of a party to an international armed conflict. See Paust, Bassiouni, et al., International Criminal Law 686 (4 ed. 2013), also noting that language in Quirin “can create confusion.” In any event, the law of war is the law of war under international law — there is no separate U.S. domestic law of war that is not int’l law of war. Quirin recognized, however, that a federal statute incorporated all of the laws of war as offenses against the laws… Read more »

John C. Dehn

Jens, This is a thoughtful argument but I tend to disagree with you. I think the problem yet to be resolved, and that you do not clearly address, is how to understand what constitute “offenses against the law of nations” or “international offenses” or “war crimes” for purposes of U.S. military commissions when at their inception and at the time of Quirin international law did not affirmatively prescribe or require punishment for any violation of the law of war. I think my description of such violations as a “domestic common law offense” in the Journal of International Criminal Justice may have been wrong except as it related to punishment by courts-martial. If we think about the jurisprudential origins of “punishment” for law of war violations, they appear to rest in natural law. All violations of the law of war were once subject to “reprisal” or “retaliation,” which at the time was a reciprocal violation of the law to punish a past violation and deter future violations (unlike today’s “countermeasures,” which are not supposed to “punish”). Given the natural law origins of the law of nations and the law of war as well as the authority to punish violations through retaliation,… Read more »

Jordan
Jordan

Jens David: I agree, it is at best a domestic offense. However, today, privileged status, combatant status hinges on one criterion: membership in the regular armed forces. So today, one remains a combatant out of uniform, but one cannot engage in combat dressed like a civilian. With respect to “common law,” the Supreme Court had ruled in 1812 that there are no more common law crimes. Cases since had used customary international law directly (as in Henfield’s Case in 1793), but there are not too many after 1823, but a few. With respect to international law, the Supreme Court was decidedly focused on the international laws of war: “From the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the [1916] Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases. Congress, in addition to… Read more »

Jordan
Jordan

p.s. and there were cases for civil sanctions prior to WWI and WWII — see, e.g., Paust, Bassiouni, et al., ICL at 340-341

Benjamin Davis
Benjamin Davis

I thought the problem with Quirin was that Roosevelt executed some of the Nazi saboteurs on the basis of the oral view given by the Supreme Court and before the written decision was done. I do not think that is normal. Thus it is a very result oriented set of words but hardly at least for me a decision worthy of precedential weight of anything other than the most modest kind. I never understood why it is given such credibility domestically.

Howard Gilbert
Howard Gilbert

If you are a member of the US military and you are accused of a crime, you will be tried in a General Court Martial no matter whether the crime is exclusively domestic law or also a violation of international law. The jurisdiction of military courts is determined by the status of the accused and not by the nature of the charge. If you are an enemy soldier who has surrendered and is being held as a prisoner of war, then you may be tired by a US Court Martial, or you may be tried in a Military Commission. Congress provides Military Commissions to try enemy combatants, but in the absence of legislation, a legitimate enemy combatant can always be tried before a Court Martial without Congressional action. The more interesting questions involve the use of Military Commissions against civilians who become combatants by Direct Participation in Hostilities, and the use of Military Commissions to try enemy aliens who commit crimes against US soldiers in a theater of combat. Not all offenses are “crimes”, either domestic or international. Soldiers are charged with all sorts of military offenses that have no analog in civilian life. Insubordination, refusing to obey a direct… Read more »

Ed White
Ed White

Two thoughts on Prof. Ohlin’s thoughtful post. First, I have always thought it significant that the Quirin Court described the law of war “as INCLUDING that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.” Ex Parte Quirin, 317 U.S. 1, 27-28 (emphasis added). The Court could have omitted the word “including,” and simply said that the law of war is that part of the law of nations that deals with conduct in war, if it viewed the law of war as simply the international law of war. By using the word “including,” it seems to me, the Court implied that it viewed the law of war as broader than simply international law. Combined with attention the Court paid to domestic precedents in its analysis, it seems reasonable to me to read Quirin as supporting the idea that U.S. military commissions may exercise jurisdiction over a broader range of offenses in war than solely international law violations. Second, I wonder whether 19th Century writers on the law of war, such as Winthrop, Halleck and others would have understood the Baxter distinction between… Read more »

Jordan
Jordan

Ed: I think you have gone astray in several respects. First, there have been other actors with formal participatory roles in international law for the last few hundred years, including nations, peoples, tribes, free cities, belligerents (as opposed to insurgents with the coming of the 1949 GCs, common art. 3). Lieber did not look to merely the practice of states or opinio juris of states. Second, war crimes have been prosecuted as such (as violations of the law of nations (CIL) and treaties) since the dawn of the U.S. — as the S.Ct. implies in the famous para. in Quirin. There is a rich history of use of the international law of war, and there is no other. Third, it is not unusual to look to any relevant domestic (U.S. and foreign) evidences of practice and opinio juris, textwriters (U.S. and domestic), and thus “domestic precedents” and customs and usage (or long term practice) among the many formal actors known to have formal participatory roles since the 1700s. see, e.g., The Paquete Habana, US 1900 and 1903 on the proof of the customary international laws of war, the fact that the President is bound, etc. Fourth, the history of international… Read more »

Jordan
Jordan

Ben: not sure, but some suggested that General Yamashita was executed before the S. Ct. ruling in his case was received in the Philippines.

Jordan
Jordan

Ben: perhaps not, on google, I see that he was executed some 19 days after the S. Ct. decision in In re Yamashita and that his lawyers had asked President Truman for clemency.

Ed White
Ed White

Jordan, I don’t think you really adequately address my point about the use of the word “including” by the Court in Ex Parte Quirin. The Court talks about the Law of War including the relevant portion of the “Law of Nations,” i.e. international law. As the sentence would make sense (but mean something different) without the word “including,” I must conclude the Court meant something by the use of that word, and to me it clearly suggests that the field of “law of war” is something broader than just the “law of nations” (or I-law). While, no doubt, there have been actors other than states on the world stage pretty much forever, Winthrop, Lieber and others did, I think, look largely to the “customs and usages” of nations at war in discerning what was prohibited and punishable in war. I don’t have Lieber materials at hand to consult, but I’m confident that Winthrop used the “customs and usages” formulation, as opposed to, say, “international law.” I don’t dispute that the U.S. has punished violations of the CIL and treaties for as long as there has been a United States; rather, my point was simply that, it seems to me, the… Read more »

Jordan
Jordan

Ed: I did not have Winthrop at home when responding and remembered the 1920 date re: the vol. that I have — so good point re: the dates.
Regarding treaty-based international law and customary international law, I note that the first use of the phrase “international law” in U.S. cases was around 1813 and that in the decades thereafter until today one can see a trend whereby use of the phrase “law of nations” shifted to attention to customary international law. It would not be unusual to say that the laws of war include relevant portions of the law of nations or customary international law — knowing that the laws of war also include relevant treaties or portions thereof. That, at least, was my point.

Jordan
Jordan

To be more precise, one should not equate the 1942 use of “law of nations” with all of “international law.”
On another point, do the customary laws of war include more than “status, rights and duties”?