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.