Sorting Through the New Mil Coms Manual

Still catching up on yesterday’s news that DOD released the much-anticipated 2010 edition of the Manual for Military Commissions (MMC). The Manual is here.

Among its many provisions of interest (I’m still skimming) are the rules set forth for prosecutions for the commission crime of material support for terrorism – a crime I and others have argued does not exist as a war crime under international law. (None of the major international criminal tribunals have included it as an offense, for example; neither is there any evidence of its existence as a criminal offense under customary international law.) Given this, the singular international law defense for the inclusion of the “material support” offense in the 2009 version of the Military Commissions Act I’ve been able to imagine is the possibility that it would be used as some version of the expansive theory of vicarious contemplated at some level by the ICTY. (In my final international law class of the year, for example, I happened to teach Furundzija – a 1998 ICTY case finding that a soldier could be prosecuted under a vicarious liability theory for giving “practical assistance, encouragement, or moral support that had a substantial effect” on the perpetration of a war crime committed, provided that the soldier had the requisite intent. It’s debatable what intent was in fact required in that case, but it was either knowledge that one’s actions would assist perpetrator OR intent to facilitate the crime – hardly a meaningless difference.) One might have argued that the MCA offense of “material support” could mitigate the international law problems if deployed, against odds, in this way.

The MCA itself defines the offense as either (1) providing “material support” (a term it defines) “knowing or intending” that it will be used “in preparation for, or in carrying out, an act of terrorism,” or (2) intentionally providing material support to an international terrorist organization engaged in hostilities against the United States if he knows that organization engages in terrorism. By its terms, one might imagine option (1) was crafted to cover the bases in Furundzija; indeed “material support” under the statute doesn’t include something as vague as the “moral support” Furundzija recognized (in a rape case), so perhaps in this respect an intent-based a prosecution could survive. Option (2), on the other hand, seems less likely to survive Furundzija’s more exacting intent requirement. It requires intent only as to the provision of money to the organization; it doesn’t require that the supporter intend that the organization use the support to facilitate or carry out terrorism (only that the supporter have knowledge that the organization has ever engaged in such activities).

So does the MMC provide clarification or cure? In a word – no. It clarifies at least that the charging conduct must take place “in the context of and … associated with hostilities.” This seems a sine qua non for a war crimes charge – it’s not a war crime if there’s not a war – that wasn’t entirely clear by the terms of the statute itself. On the other hand, the MMC preserves knowledge as a potential basis for prosecution for material support for an act of terrorism, and preserves knowledge as the singular basis for prosecution for support to a terrorist organization. In other words, material support could still just be a knowledge-based offense. If Furundzija is in fact the model, and if Furundzija’s more exacting “intent to facilitate” standard applies, then no knowledge-based prosecution could survive. Seems like yet another of many potential issues as these cases are brought and appealed. In the meantime, I hope those international criminal law experts out there will tell me what I’m getting wrong.