Guest Post: What’s in Name? – Military Commissions and Criminal Liability under a U.S. Common Law of War

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School. He co-authored an amicus brief in D.C. Circuit on behalf of civil rights organizations in Hamdan v United States (Hamdan II).]

On September 30, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, will hear oral argument in the case of Guantanamo detainee and alleged al Qaeda propagandist, Ali Hamza Ahmad Suliman al Bahlul.   Earlier this year, a D.C. Circuit panel invalidated al Bahlul’s conviction by a military commission for conspiracy and related charges because those offenses did not violate the international law of war when committed.  The ruling in Al Bahlul followed logically from the D.C. Circuit’s previous ruling in Hamdan v. United States (Hamdan II), reversing the defendant’s conviction and holding that jurisdiction under the Military Commissions Act of 2006 (2006 MCA) is limited to violations of international law for conduct that pre-dates the statute.

Al Bahlul presents the important question of whether the U.S. may try in a military commission offenses such as conspiracy and material support for terrorism (MST) that do not violate international law. The U.S. government’s argument is predicated on the assumption that the jurisdiction of military commissions extends also to violations of a separate (domestic) U.S. common law of war. The principal focus in Al Bahlul will be on statutory and constitutional issues—more specifically, whether the 2006 MCA authorizes the prosecution of pre-2006 conduct that does not violate international law and, if so, whether the statute violates the Ex Post Facto Clause, the Define and Punish Clause, and/or the civilian criminal jury trial guarantee under Article III and the Fifth and Sixth Amendments.

It is important, however, to consider some other implications of the U.S. government’s argument for commission jurisdiction based on a domestic common law of war.  As described below, the U.S. position is in tension with the theory and purpose underlying war crimes prosecutions, regardless whether liability is imposed retroactively or prospectively.

International law rests on a consensus among nations regarding shared values and norms, and not on a particular country’s unique heritage or tradition.  This notion of shared norms—and of membership in a larger transnational community—is central to international law and to conceptions of its role in constraining state behavior.  War crimes are among the oldest offenses under international law.  They have developed over the centuries through custom and usage, reflecting an evolving consensus on conduct so extreme it is prohibited even during armed conflict, where state-sponsored violence is the generally accepted norm.

A separate “U.S. common law of war” jeopardizes the principle that war crimes rest on shared conceptions of exceptionally grave conduct.  It suggests, moreover, that each state may unilaterally define its own sub-set of war crimes, creating the possibility of multiple and inconsistent definitions of criminal liability during armed conflict.

To be clear, the United States is not advancing competing interpretation of a shared norm of substantive criminal liability.  Rather, it is prosecuting individuals based on what it claims is a separate domestic tradition of war crimes that exists outside and independent of internationally accepted norms. The position is thus directly at odds with the conception and purpose of war crimes.

The U.S. position also advances a sweeping expansion of individual criminal liability during armed conflict.  Under the guise of domestic law, it seeks to bring within the scope of war crimes conduct that exceeds even the broadest notions of collective liability articulated by international tribunals since Nuremberg.  Under international law, war crimes are considered grave offenses and liability is premised on personal culpability.  The U.S. common law of war theory, however, turns this notion on its head.  MST, conspiracy, and murder in violation of the law of war (the last charge is not at issue in Al Bahlul but supplied a basis for conviction in the Omar Khadr prosecution) seek to impose liability for virtually any participation in armed conflict by members of certain enemy forces (all of whom are designated as unprivileged enemy belligerents).

By effectively transforming all such fighters into war criminals, even if they do not themselves participate in or commit a war crime, the U.S. theory diminishes the expressive value of war crimes prosecutions.  Rather than criminalizing the actions of a fighter who transgresses specific norms during armed conflict, it makes all fighters in a particular conflict war criminals.  Status, in short, replaces conduct as the basis for war crimes liability.  Under this theory, the difference between a Khalid Shaikh Mohammed, accused of killing three thousand civilians, and a defendant prosecuted for MST or conspiracy merely for attending an al Qaeda-affiliated military training camp, becomes one of degree, not kind.

The United States has invoked the charge of war crimes in commissions not so much to properly capture the nature of the alleged conduct as to circumvent existing legal protections provided by Article III courts.   Despite improvements made since their earlier incarcerations, the commissions are still plagued by an absence of transparency, obstacles to the accused’s ability to confront the government’s evidence, and limitations on the attorney-client relationship and effective representation of counsel, among other problems. The commissions’ overriding purpose remains supplying an alternative forum that makes it easier to obtain convictions and that is more politically secure.

The commissions thus lack a key justification behind creation of specialized tribunals to address war crimes and other grave criminality—the inability or unwillingness of existing national tribunals to prosecute the offenses fully and fairly.  Their prosecution of war crimes thus serves the aim of forum diversion rather than vindication of an underlying and widely shared substantive norm.  Indeed, for the commissions, forum diversion through labeling conduct a war crime itself becomes the message: conveying opprobrium by shifting a broad category of cases away from a capable, but neutral forum (federal courts) to a specialized, second-class forum—a message embodied by the common refrain that foreign terrorism suspects do not “deserve” to be tried in the regular criminal justice system.