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. 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…