Does Hamdan II Undermine Al-Nashiri?

A few days ago, I criticized Judge Pohl’s rejection of al-Nashiri’s claim that there was no armed conflict between the US and al-Qaeda at the time of the acts alleged in his indictment — such as the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts.  Judge Pohl’s decision relied almost exclusively on two facts: (1) Congress enacted, and Obama signed, the Military Commissions Act of 2009, which gave the commissions jurisdiction over acts committed prior to 9/11; and (2) the government referred charges against al-Nashiri knowing full well that the acts in question took place prior to 9/11.  Those facts, according to Judge Pohl, suffice to establish that there was an armed conflict between al-Qaeda and the US at the time of al-Nashiri’s acts.

As I explained in the post, Judge Pohl’s argument doesn’t make sense on its own terms.  But I think there is an even deeper problem with the decision: it conflicts with Hamdan II, in which the D.C. Circuit rejected the government’s claim that material support for terrorism (MST) was a war crime.  Central to that decision was the D.C. Circuit’s insistence that the military commissions can only prosecute acts that qualify as war crimes under the international law of war; whether they are war crimes under the so-called “U.S. common law of war” is irrelevant:

Third, and perhaps most to the point, [the Government’s] cases do not establish that material support for terrorism was a war crime recognized under international law as of 1996 to 2001 when Hamdan committed his conduct, which is the relevant inquiry under 10 U.S.C. § 821. The Government contends that those Civil War precedents illuminate what it calls the “U.S. common law of war” – not the international law of war. But the statutory constraint here imposed by 10 U.S.C. § 821 is the international law of war. As the Government told the Supreme Court in Quirin, “This ‘common law of war’ is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war.” Brief for the United States at 29, in Quirin, 317 U.S. 1 (emphasis added) (citation omitted). To be sure, U.S.precedents may inform the content of international law. But those Civil War precedents fail to establish material support for terrorism as a war crime under the international law of war as of 1996 to 2001. And even the Government admits that material support for terrorism was not an international-law war crime as of 1996 to 2001.

In short, material support for terrorism was not an international-law war crime under 10 U.S.C. § 821 at the time Hamdan engaged in the relevant conduct.

Here is my question: doesn’t the D.C. Circuit’s insistence in Hamdan II that the criminality of conduct must be determined according to the international law of war contradict Judge Pohl’s conclusion in al-Nashiri that Congress and the President have the authority to determine the existence of armed conflict?  The idea that the existence of armed conflict is determined by the subjective perceptions of the fighting parties is foreign to IHL; indeed, the modern view — encapsulated in the ICTY’s seminal decision in Tadic — is predicated on the idea that the existence of armed conflict is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities.  Under the international law of war, in other words, states and non-state actors don’t decide when they are engaged in an armed conflict; the hostilities themselves make that decision for them.

Given Hamdan II, I don’t see how Judge Pohl’s decision in al-Nashiri can be sustained.  The existence of armed conflict is an essential element of every war crime; an act that takes place outside of armed conflict may violate a state’s domestic criminal law, but it does not violate IHL. So if the military commissions have jurisdiction only over acts that violate “the international law of war,” they do not have jurisdiction over acts that took place during hostilities that do not satisfy the Tadic test.  And that is true regardless of the US’s subjective perceptions of its “armed conflict” with al-Qaeda.

I have no idea whether the DC Circuit, if presented with the question, would be true to its own principles and apply Hamdan II to al-Nashiri.  I am also far from confident that the DC Circuit would apply Tadic correctly and conclude that there was no armed conflict between the US and al-Qaeda at the time of al-Nashiri’s acts.  But if I were al-Nashiri’s lawyers, I’d raise the issue as soon as I could.