As promised yesterday, I’m posting a short overview of the arguments in the government’s briefs to the en banc CMCR in al-Bahlul and Hamdan (click here for an earlier post doing the same for the appellants’ briefs). Recall that the en banc proceeding calls for briefing on only two questions:
I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006).
II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation? ee Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).
The following is a brief summary of the government’s brief in al-Bahlul responding to these issues. I do not separately summarize the government’s Hamdan brief. It incorporates by reference the discussion of Joint Criminal Enterprise in the al-Bahlul brief and provides a discussion of the aiding-the-enemy issue that is similar in content to the points in the al-Bahlul brief summarized below. The government’s Hamdan brief does differ a bit in that it has a discussion in Part I that argues that material support itself was a prosecutable offense prior to 2006. In any event, here is my summary of the government’s brief in al-Bahlul:
Issue 1: Relevance of Joint Criminal Enterprise
(a) Congress in the Military Commissions Act of 2006 concluded that conspiracy to commit war crimes already constituted a violation of the laws of war, and this finds support in the fact that international criminal courts have recognized Joint Criminal Enterprise (JCE) liability. JCE and conspiracy differ in that the former is not a stand-alone offense, yet the proof requirements are nearly identical.
(b) The similarity between JCE and conspiracy also help explain why a conspiracy prosecution here would not violate the principle of nullum crimen sine legem.
(c) Many other states, besides the United States, criminalize conspiracy or its near-equivalent.
(d) The United States has long taken the position that conspiracy is a crime punishable by military commission (citing: the commission prosecution of the Lincoln-assassination conspirators, references to such prosecutions in the Civil War and the Philippines in Winthrop’s treatise, Quirin, and efforts by US prosecutors at Nuremberg to charge conspiracy there). The IMT’s post-WWII rejection of conspiracy in the context of war crime and crimes and against humanity should not control, the government argues, because that decision was driven by the terms of the London Charter (and in any event the IMT did accept conspiracy for crimes against peace).
Issue 2: Relevance of Aiding-the-Enemy
(a) A defendant need not owe a duty of allegiance to the US in order to be guilty of aiding the enemy; even those who do not owe such a duty can be liable if the party they aid is either unlawfully engaging in war in the first place or is waging the war in an unlawful manner.
(b) There are historical examples of aiding-the-enemy prosecutions, or prosecutions comparable to it, before military commissions involving defendants who owed no duty of allegiance to the United States.
– The first example given is Andrew Jackson’s prosecution of Ambrister and Arbuthnot, both British citizens, during the Seminole War. The brief acknowledges that there was much controversy about this prosecution, but concludes that in the end the action was approved by James Monroe and John Quincy Adams.
– The second example is an 1871 Attorney General opinion asserting the propriety of charging individuals for supplying arms to Cherokees engaged in hostilities against the US in New Mexico.
– The third point in this sequence notes that examples from the Philippine insurrection are not on point for this issue because all persons in that conflict owed some form of duty to the US.
– The fourth point cites Ex parte Quirin, where most of the defendants were noncitizens yet were tried and convicted for aiding the enemy in relation to an illegal mode of attack (among other things).
– The fifth point cites the Zyklon B case before allied military commissions after WWII, in which German businessmen were prosecuted in circumstances said to be analogous to aiding the enemy.
– The sixth point argues that non-citizen blockade runners in the Civil War were not prosecuted because they neither had a duty nor were they aiding an unlawful or an unlawfully-fought war (the theory being that they were aiding a recognized belligerent that was fighting lawfully; US citizens who provided such aid, in contrast, were prosecuted for wrongfully aiding the enemy in violation of their duty of allegiance).