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Haridimos Thravalos on Hamdan, Conspiracy, and History

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Sunday, March 25, 2012 at 11:46 PM

I received this evening a most extraordinary guest post. It isn’t every day that someone sends me a memo outlining how a four-justice plurality of the Supreme Court got a key historical point wrong in a major case–much less does so convincingly. But that is what the following article by one Haridimos V. Thravalos claims about the discussion in the plurality opinion in Hamdan concerning whether conspiracy has been historically considered a war crime triable by commission. This point is important; indeed, as Thravalos explains, it is currently being contested in the courts. How those cases turn out will determine whether the crime will be available to prosecutors in military commission cases going forward.

Thravalos’s research is entirely astonishing. Thravalos, whom we have published before, is a graduate of Cornell University and Villanova University School of Law who follows national security law in general and military commissions in particular. He seems to have gone through every scrap of paper in the National Archive related to commissions, their recording by military scholars, the clerical errors in that recording, and the relationship among the scholars.

And he has come to a conclusion that, if correct, is genuinely consequential: The Supreme Court plurality muffed the history big time.

It’s hard to describe a piece of historical research about World War II, the Civil War, and Army historiography as breaking news, yet given that this is a contested issue right now in active cases, this research kind of qualifies. Anyone interested in the future of military commissions needs to read this piece carefully–and read it to the end.

The attachments to which Thravalos refers are all available here.

History, Hamdan, and Happenstance:

“Conspiracy by Two or More To Violate the Laws of War by Destroying Life or Property in Aid of the Enemy”

By Haridimos V. Thravalos


In June 2006, the U.S. Supreme Court struck down President George W. Bush’s use of military commissions to try suspected members of al-Qaeda in Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In Hamdan, a plurality of the Court also concluded that conspiracy was “not a stand-alone offense against the law of war” triable by “law-of-war military commission.” See Hamdan, 548 at 608.

The issue of whether conspiracy is triable by military commission has become suddenly relevant again: It is today pending before the U.S. Court of Appeals for the District of Columbia Circuit in the case of Ali Hamza Suliman Ahmad Al Bahlul v. United States and may be headed back to the Supreme Court. In Al Bahul, one of the issues to be decided is whether Congress has the constitutional power in the Military Commissions Act of 2009, 10 U.S.C. §§ 948a-950t (2006 & Supp. IV 2010), to authorize trial of the offense of conspiracy by military commission. Petitioner Al Bahlul contends that “[t]here is an extensive and unanimous history of rejecting conspiracy to commit war crimes.” Brief of Petitioner at 19, Al Bahlul v. United States, No. 11-1324 (D.C. Cir. Mar. 9, 2012). He bases his conclusion, with respect to domestic precedents, solely upon the reasoning adopted by the Hamdan plurality. So the plurality’s use of history has immediate consequences for the vitality of military commissions now and in the future.

It is the purpose of this brief memorandum to demonstrate that the Hamdan plurality’s conclusions of law with respect to conspiracy were based on bad history–either incomplete or erroneous facts.

The Hamdan plurality found that conspiracy was not a violation of the law of war under domestic precedents for three reasons. First, the plurality noted that the Court in Ex parte Quirin, 317 U.S. 1 (1942), did not affirmatively decide whether conspiracy to violate the law of war was itself a violation of the law of war triable by law-of-war military commission, thus negating the case’s precedential value. Second, the plurality found that Captain Charles Roscoe Howland’s 1912 treatise–which listed conspiracy “to violate the laws of war by destroying life or property in aid of the enemy” as a violation of the law of war tried by law-of-war military commissions during the Civil War–was based upon faulty scholarship. Third, the plurality observed that Colonel William Winthrop, in his 1896 treatise (reprinted in 1920), recognized the error in Captain Howland’s earlier scholarship, and excluded “conspiracy of any kind from his own list of offenses against the law of war.” See Hamdan, 548 at 604-08. From these “facts,” the plurality concluded that “these sources at best lend little support” to the proposition that conspiracy to violate the law of war was a violation of the law of war triable by law-of-war military commission and “at worst undermine it.” Id. at 605.

Let us consider each of these three contentions in turn, for each has a complicated story behind it–a story that does not favor the plurality’s conclusion.

First, with respect to Quirin, the Hamdan plurality indicated that the fact that “the defendants in Quirin were charged with conspiracy” was “not persuasive, since the Court declined to address whether the offense actually qualified as a violation of the law of war–let alone one triable by military commission.” Id. This was true as far as it went, but while the Judicial Branch may not have passed on this issue affirmatively, it did receive the blessing of the Executive Branch, when the President of the United States–Franklin Delano Roosevelt–personally approved the convictions of the eight Quirin defendants, six of whom were sentenced to death. Executive Branch interpretation may not seem especially compelling, but one must recall that military commissions, at the time, were war-time miliary courts convened under the common law of war by the Executive Branch, so most legal interpretation regarding their scope and propriety over the past two centuries has been Executive Branch interpretation. See, e.g., Clinton Rossiter, The Supreme Court and the Commander in Chief 109 (Richard P. Longaker ed., expanded ed. 1976) (1951) (“[T]he military commission is wholly the creature of the commander in chief or of one of his ranking officers in the field. Congress, too, may occasionally authorize the establishment of military commissions, as the southern states learned in the period of Reconstruction. In general, however, they are executive creations. Their jurisdiction, composition, procedure, and powers are for the President alone to determine and supervise.”).

Moreover, the plurality failed to note the existence of a less-well-known precedent: the so-called “1944 Nazi Saboteurs.” This later set of would-be saboteurs were also charged with offenses against the law of war–charges nearly identical to those preferred against the Quirin defendants. William Curtis Colepaugh (an American) and Erich Gimpel (a German) were tried by a military commission convened at Governors Island, New York during February 1945. Their trial, which included the charge of “Conspiracy to Commit All of the Above Acts,” was held to be lawful (1) by a special Board of Review in the Office of The Judge Advocate General of the Army, (2) by the Judge Advocate General of the Army, Major General Myron C. Cramer and (3) by the President of the United States, Harry S. Truman, who personally approved the convictions of these two men. See Opinion of Special Board of Review, Office of The Judge Advocate General, Army Service Forces, U.S. War Dep’t, to The Judge Advocate General (Mar. 27, 1945) (opining that military commission trial (convened Feb. 6, 1945 at Governors Island, N.Y.) of William Curtis Colepaugh and Erich Gimpel (U.S. citizen and German citizen charged with (1) violating “the Law of War” (by secretly passing through, in civilian dress, “the military and naval lines and defenses of the United States” for “the purpose of committing espionage, sabotage and other hostile acts” and remaining, in civilian dress, behind “the military and naval defenses and lines of the United States” for “the purpose of committing and attempting to commit espionage, sabotage and other hostile acts”) in United States during Nov.-Dec. 1944, (2) violating Art. 82 of 1920 Articles of War in United States during Nov.-Dec. 1944 and (3) “Conspiracy to Commit All of the Above Acts” (by plotting, planning and conspiring “with each other, with the German Reich, and with other enemies of the United States, to commit each and every one of the acts enumerated in the foregoing charges and specifications”) in Germany and United States during 1944) was lawful, and recommending that sentences be approved) (“The Military Commission was legally constituted and had jurisdiction of the persons and the subject matter.”) (see “Attachment No. 1”); Endorsement from Maj. Gen. Myron C. Cramer, U.S. Army, The J. Advoc. Gen., to the Secretary of War (Apr. 23, 1945) (approving opinion of Special Board of Review) (see “Attachment No. 2”); Sec’y of War Henry L. Stimson, General Orders No. 52, War Department, Washington, D.C., July 7, 1945 (approving conviction, but commuting sentence, of William Curtis Colepaugh to life imprisonment by May 15, 1945 order of President Harry S. Truman, and approving conviction, but commuting sentence, of Erich Gimpel to life imprisonment by May 15, 1945 order and June 13, 1945 order of President Harry S. Truman) (see “Attachment No. 3”); Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957).

The Colepaugh/Gimpel military commission was a pure law-of-war military commission–and not a “hybrid” military commission–because martial law did not prevail in New York during the February 1945 trial, nor was New York enemy-occupied territory subject to military government. Moreover, the Colepaugh/Gimpel law-of-war military commission tried the “stand-alone offense against the law of war” of conspiracy, and not a “compound offense,” because the conspiracy charge related to the same underlying transactions alleged to be in violation of the law of war. Hamdan, 548 at 608. Therefore, the Colepaugh/Gimpel military commission is a World War II-era precedent for the principle that conspiracy to violate the law of war is, itself, a violation of the law of war triable by law-of-war military commission.

In addition, subsequent to the Colepaugh/Gimpel case, the U.S. Army followed this precedent during the concluding months of World War II and also during the Korean War. See, e.g., Gen. Douglas MacArthur, Letter Order, General Headquarters, United States Army Forces, Pacific, Regulations Governing the Trial of War Criminals, Sept. 24, 1945 (File No. AG 000.5 (24 Sep 45) JA) (making “participation in a common plan or conspiracy” punishable by military commission in Pacific Theater of Operations during World War II); Lieut. Gen. Albert C. Wedemeyer, Letter Order, Headquarters, United States Forces, China Theater, Regulations Governing the Trial of War Criminals, Jan. 21, 1946 (File No. AG 000.5 (21 Jan 46) JA) (making “participation in a common plan or conspiracy” punishable by military commission in China Theater of Operations during World War II); Gen. Douglas MacArthur, Letter Order, General Headquarters, United Nations Command, Tokyo, Japan, Trial of Accused War Criminals, Oct. 28, 1950 (File No. AG 000.5 (28 Oct 50) JA) (promulgating U.N. Command, Rules of Criminal Procedure for Military Commissions of the United Nations Command (Oct. 22, 1950)); U.N. Command, Rules of Criminal Procedure for Military Commissions of the United Nations Command (Oct. 22, 1950) (making “all attempts to commit, or conspiracies and agreements to commit, as well as inciting, encouraging, aiding, abetting, or permitting violations of the laws and customs of war” committed during Korean War punishable by U.N. military commission); see also U.S. Dep’t of the Army, Field Manual No. 27-10, The Law of Land Warfare ¶ 500 (July 18, 1956) (as amended by Change No. 1 of July 15, 1976) (“Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.”).

The plurality’s second and third arguments–with respect to the treatises of Captain Howland and Colonel Winthrop–are inextricably linked, and must therefore be treated together. Here, the Hamdan plurality began by noting that “military historian” Captain Howland listed “conspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy” as a violation of the law of war “passed upon and punished by military commissions” during the Civil War. Hamdan, 548 at 607. The plurality acknowledged that Captain Howland’s work was “superficially” helpful to the United States, because he listed conspiracy to violate the law of war as an offense tried by military commissions during the Civil War. But, it concluded, the “records of cases” that Captain Howland cited to support conspiracy, upon critical examination, actually provided “no support for the inclusion of conspiracy as a violation of the law of war.” Id. The “records of cases” to which the plurality referred are the “Record Books” of the Office of The Judge Advocate General of the Army (“JAG”), which are currently housed at the National Archives in Washington, D.C. These JAG Record Books contain the thousands of manuscript legal opinions rendered by the Judge Advocate General during and after the Civil War. See generally W. M. Dunn, A Sketch of the History and Duties of the Judge Advocate General’s Department, United States Army, Washington, D.C. (Washington, Thomas McGill & Co. 1878) (reporting that Judge Advocate General of Army rendered 34,923 reports and opinions between Sept. 1, 1862 and Mar. 1, 1878).

The plurality evidently reviewed these JAG Record Books and concluded that Captain Howland’s citation to them with respect to conspiracy was erroneous–and thus Captain Howland’s opinion vis-à-vis conspiracy was not worthy of credence. The plurality further concluded that the estemed scholar, Colonel Winthrop–whom the Supreme Court has described as “the ‘Blackstone of Military Law’”–“apparently recognizing as much, excludes conspiracy of any kind from his own list of offenses against the law of war.” Hamdan, 548 at 608.

It turns out, however, that the two men’s work cannot be so easily set at odds.

Captain Howland’s work, which has come to be known as the “1912 JAG Digest,” is a compendium of the legal opinions rendered by the Judge Advocate General of the Army from September 1862 to January 1912, gleaned from the JAG Record Books and other office precedents. Captain Howland’s digest, however, was not the first JAG Digest to be compiled. In fact, the first-ever JAG Digest was compiled by none other than then-Major William Winthrop during 1865.

Major (and later Colonel) Winthrop, in fact, edited four additional JAG Digests, which were published in 1866, 1868, 1880 and 1895, respectively. Upon Colonel Winthrop’s retirement from the U.S. Army, the task of updating the 1895 JAG Digest was entrusted to Major Charles McClure. Major McClure’s edition of the JAG Digest was published in 1901, and this edition was itself updated by Captain Howland in 1912. See William F. Fratcher, Colonel William Winthrop, 1 Judge Advoc. J. 12, 14 (Dec. 1944) (stating that (1) Colonel Winthrop was author of 1865, 1866, 1868, 1880 and 1895 JAG Digests, (2) Colonel Winthrop’s 1895 JAG Digest was updated by Major McClure and published as 1901 JAG Digest and (3) 1912 JAG Digest, edited by Captain Howland, was “direct lineal descendant[] of Colonel Winthrop’s work”); U.S. War Dep’t, Digest of Opinions of the Judge Advocate General of the Army (Washington, Gov’t Printing Office 1865) (the “1865 JAG Digest”); U.S. War Dep’t, Digest of Opinions of the Judge Advocate General of the Army (Washington, Gov’t Printing Office 1866) (the “1866 JAG Digest”); U.S. War Dep’t, Digest of Opinions of the Judge Advocate General of the Army (William Winthrop ed., Washington, Gov’t Printing Office 3d ed. 1868) (the “1868 JAG Digest”); U.S. War Dep’t, A Digest of Opinions of the Judge Advocate General of the Army (William Winthrop ed., Washington, Gov’t Printing Office 1880) (the “1880 JAG Digest”); U.S. War Dep’t, A Digest of Opinions of the Judge Advocates General of the Army (William Winthrop ed., Washington, Gov’t Printing Office 1895) (the “1895 JAG Digest”); U.S. War Dep’t, A Digest of Opinions of the Judge-Advocates General of the Army (Charles McClure ed., rev. ed. 1901) (the “1901 JAG Digest”); U.S. War Dep’t, A Digest of Opinions of the Judge Advocates General of the Army: 1912 (Charles Roscoe Howland ed., 1912) (the “1912 JAG Digest”); see generally Joshua E. Kastenberg, The Blackstone of Military Law: Colonel William Winthrop (2009) (chronicling life and times of Col. William Winthrop, U.S. Army, J. Advoc.).

Thus, Captain Howland’s 1912 JAG Digest–the one the plurality dismisses–is the “direct lineal descendant[]” of Colonel Winthrop’s 1880 JAG Digest, which was the first JAG Digest to be annotated.

Colonel Winthrop’s 1880 JAG Digest was conveniently also the first JAG Digest to set forth a list of “offences against the laws and usages of war” tried by military commissions during the Civil War. And it turns out that one such offense was “[c]onspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy.” See U.S. War Dep’t, A Digest of Opinions of the Judge Advocate General of the Army 328-29 (William Winthrop ed., Washington, Gov’t Printing Office 1880) (recognizing “[c]onspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy” as violation of law of war “passed upon and punished by military commissions” during Civil War) (the “1880 JAG Digest”) (see “Attachment No. 4”). This offense of “conspiracy” was repeated verbatim by Colonel Winthrop in the 1895 JAG Digest, by Major McClure in the 1901 JAG Digest, and by Captain Howland in the 1912 JAG Digest. See U.S. War Dep’t, A Digest of Opinions of the Judge Advocates General of the Army 502-03 (William Winthrop ed., Washington, Gov’t Printing Office 1895) (recognizing “[c]onspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy” as violation of law of war “passed upon and punished by military commissions” during Civil War) (the “1895 JAG Digest”) (see “Attachment No. 5”); U.S. War Dep’t, A Digest of Opinions of the Judge-Advocates General of the Army 464-65 (Charles McClure ed., rev. ed. 1901) (recognizing “conspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy” as violation of law of war “passed upon and punished by military commissions” during Civil War) (the “1901 JAG Digest”) (see “Attachment No. 6”); U.S. War Dep’t, A Digest of Opinions of the Judge Advocates General of the Army: 1912, at 1070-71 (Charles Roscoe Howland ed., 1912) (recognizing “conspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy” as violation of law of war “passed upon and punished by military commissions” during Civil War) (the “1912 JAG Digest”) (see “Attachment No. 7”); see generally Comparison of 1880, 1895, 1901 and 1912 JAG Digests: Offenses Tried by Military Commissions During the Civil War (see “Attachment No. 8”).

Thus, contrary to the Hamdan plurality’s assertion, Captain Howland’s “list of offenses against the law of war”–which included conspiracy “to violate the laws of war by destroying life or property in aid of the enemy” as a violation of the law of war triable by law-of-war military commission–was, in fact, Colonel Winthrop’s “own list,” which the colonel first enunciated in 1880.

Significantly, in addition to the 1880 and 1895 JAG Digests, Colonel Winthrop also personally held in both his 1886 and 1896 treatises on military law and precedents that conspiracy was a violation of the law of war triable by law-of-war military commission. See 2 William Winthrop, Military Law 70, 75-76 (Washington, W. H. Morrison 1886) (listing “criminal conspiracies” as both (1) “[c]rimes and statutory offences cognizable by State or U. S. courts” and (2) “[v]iolations of the laws and usages of war cognizable by military tribunals” that were tried and punished by military commissions during Civil War) (“Where the offence is both a crime against society and a violation of the laws of war, the charge, in its form, has not unfrequently represented both elements, as ‘Murder, in violation of the laws of war,’ ‘Conspiracy, in violation,’ &c.”); 2 William Winthrop, Military Law and Precedents 1309, 1314 (Boston, Little, Brown & Co. rev. 2d ed. 1896) (listing “criminal conspiracies” as both (1) “[c]rimes and statutory offences cognizable by State or U. S. courts” and (2) “[v]iolations of the laws and usages of war cognizable by military tribunals” that were tried and punished by military commissions during Civil War) (“Where the offence is both a crime against society and a violation of the laws of war, the charge, in its form, has not unfrequently represented both elements, as ‘Murder, in violation of the laws of war,’ ‘Conspiracy, in violation,’ &c.”); William Winthrop, Military Law and Precedents 839, 842 (rev. 2d ed. 1920) (listing “criminal conspiracies” as both (1) “[c]rimes and statutory offences cognizable by State or U. S. courts” and (2) “[v]iolations of the laws and usages of war cognizable by military tribunals” that were tried and punished by military commissions during Civil War) (“Where the offence is both a crime against society and a violation of the laws of war, the charge, in its form, has not unfrequently represented both elements, as ‘Murder, in violation of the laws of war,’ ‘Conspiracy, in violation,’ &c.”) (reprint of 1896 edition); see also U.S. War Dep’t, A Digest of Opinions of the Judge Advocates General of the Army 3 (William Winthrop ed., Washington, Gov’t Printing Office 1895) (noting that 1895 JAG Digest was keyed to forthcoming 1896 edition of Military Law and Precedents, and that these two publications should be read in unison).

What, however, of the Hamdan plurality’s observation that the citation to which Colonel Winthrop and Captain Howland referred did not support their conclusion that conspiracy “to violate the laws of war by destroying life or property in aid of the enemy” was a violation of the law of war triable by law-of-war military commission? The answer turns out to be nothing more than a labeling error.

Colonel Winthrop’s original citation in the 1880 JAG Digest was “XXI, 280.” This corresponds to Volume 21, Page 280 of the JAG Record Books. In the 1901 JAG Digest, Major McClure supplemented Colonel Winthrop’s citation by adding the month and year in which the opinion was rendered; namely, “March, 1866.” Captain Howland’s corresponding citation in the 1912 JAG Digest, building on that of his predecessors, was “21, 280, Mar., 1866.” Therefore, an opinion rendered by the Judge Advocate General of the Army in March 1866 and recorded in 21 JAG Record Books 280 should support the proposition that conspiracy is a law-of-war violation triable by law-of-war military commission. As the Hamdan plurality correctly noted, however, an examination of this citation in the JAG Record Books does not reveal the desired opinion. See Hamdan, 548 at 607 (stating that “while the records of cases that Howland cites following his list of offenses against the law of war support inclusion of the other offenses mentioned, they provide no support for the inclusion of conspiracy as a violation of the law of war”). What the plurality could not have reasonably known, however, was that by happenstance–a quirk of history–the JAG Record Book in question was inadvertently mislabeled. Specifically, at some unknown point in time subsequent to 1912, Volume 21 and Volume 16 were switched, the former being mislabeled as the latter.  Thus, the desired opinion–21 JAG Record Books 280–exists, but is actually located in what is today 16 JAG Record Books 280.

Under the record-keeping practices that prevailed during the Civil War, each opinion of the Judge Advocate General of the Army was made in duplicate. The original opinion, which was prepared in longhand and signed by the Judge Advocate General, was sent to its intended recipient (usually the Secretary of War or the President of the United States). Thereafter, a “record copy” of the original opinion was transcribed by clerks into the JAG Record Books, to be used as office precedents. These JAG Record Books were also separately indexed, so as to ensure the orderly location of these office precedents. In this instance, the Index Book for Volume 21 of the JAG Record Books (which spans the opinions rendered between November 1865 and November 1866) notes that the opinion recorded in 21 JAG Record Books 280 pertains to the case of one William Murphy. See Volume 2 of the Index Books to the JAG Record Books (indicating that opinion in case of William Murphy was recorded in 21 JAG Record Books 280) (see “Attachment No. 9”). The JAG case-file of William Murphy, in turn, contains the original opinion of the Judge Advocate General, bearing the date March 21, 1866, with the notation that it was recorded in the JAG Record Books at “21, 280.” See Review from Joseph Holt, J. Advoc. Gen., to the Secretary of War (Mar. 21, 1866) (opining that military commission trial (convened Sept. 19, 1865 at Saint Louis, Mo.) of William Murphy (U.S. citizen charged with (1) “Conspiracy to burn and destroy steamboats and other property belonging to or in the service of the United States of America, or available for such service, with intent to aid the rebellion against the United States” in Mobile, Ala. and “divers other places within the United States” during July 1863-Jan. 1865 and (2) violating “the laws and customs of war” (by burning/attempting to burn steamboats plying on Mississippi River) in Memphis, Tenn. during Sept. 1863 and Memphis, Tenn./Cairo, Ill. during Sept. 1864) was lawful, and recommending that sentence be approved) (original review bearing citation 21 JAG Record Books 280) (see “Attachment No. 10”). This opinion is identical to the opinion recorded in 16 JAG Record Books 280 (which at the time of issuance was actually Volume 21). See Review from Joseph Holt, J. Advoc. Gen., to the Secretary of War (Mar. 21, 1866) (opining that military commission trial (convened Sept. 19, 1865 at Saint Louis, Mo.) of William Murphy (U.S. citizen charged with (1) “Conspiracy to burn and destroy steamboats and other property belonging to or in the service of the United States of America, or available for such service, with intent to aid the rebellion against the United States” in Mobile, Ala. and “divers other places within the United States” during July 1863-Jan. 1865 and (2) violating “the laws and customs of war” (by burning/attempting to burn steamboats plying on Mississippi River) in Memphis, Tenn. during Sept. 1863 and Memphis, Tenn./Cairo, Ill. during Sept. 1864) was lawful, and recommending that sentence be approved) (Record Book copy located in 16 JAG Record Books 280) (see “Attachment No. 11”).

In short, the citation originally noted by Colonel Winthrop in 1880 (21 JAG Record Books 280), and verified by Major McClure in 1901 and by Captain Howland in 1912, is correct. A simple labeling error, which occurred at some unknown point in time during the ensuing century, obscured this fact and led the Hamdan plurality to conclude erroneously that Captain Howland’s citation was incorrect. Put simply, contrary to the plurality’s assertion, Captain Howland’s allegedly “incorrect” citation is actually Colonel Winthrop’s correct citation, and the case referred to in 21 JAG Record Books 280 is that of William Murphy.

William Murphy was tried for (1) “Conspiracy to burn and destroy steamboats and other property belonging to or in the service of the United States of America, or available for such service, with intent to aid the rebellion against the United States” and (2) violating the law of war by a military commission convened at Saint Louis, Missouri during September 1865–five months after Confederate General Robert E. Lee’s surrender at Appomattox court-house. The Judge Advocate General of the Army, Joseph Holt, held, on March 21, 1866, that Murphy’s trial was lawful. President Andrew Johnson personally passed upon and approved Murphy’s conviction on March 30, 1866, a mere three days before the President proclaimed the Civil War to be at an end. See President Andrew Johnson, Exec. Order (Mar. 30, 1866) (approving conviction of William Murphy) (see “Attachment No. 12”); President Andrew Johnson, Proclamation (Apr. 2, 1866), reprinted in 14 Stat. 811 (1866) (declaring Civil War at end in all states of Union except Texas); President Andrew Johnson, General Court Martial Orders, No. 107, War Department, Adjutant General’s Office, Washington, Apr. 18, 1866 (publishing Mar. 30, 1866 approval of conviction of William Murphy) (see “Attachment No. 13”); In re Murphy, 17 F. Cas. 1030 (C.C.D. Mo. 1867) (No. 9947).

Like the Colepaugh/Gimpel military commission, the Murphy military commission was a pure law-of-war military commission because martial law did not prevail in Missouri during the September 1865-January 1866 trial, nor was Missouri enemy-occupied territory subject to military government. Moreover, the Murphy law-of-war military commission tried the “stand-alone offense against the law of war” of conspiracy, and not a “compound offense,” because the conspiracy charge related to the same underlying transactions alleged to be in violation of the law of war. Hamdan, 548 at 608. Therefore, the Murphy military commission is a Civil War-era precedent for the principle that conspiracy to violate the law of war is, itself, a violation of the law of war triable by law-of-war military commission.

In addition, subsequent to the Murphy case, the U.S. Army followed this precedent during the Philippine Insurrection. See, e.g., Report from G. N. Lieber, J. Advoc. Gen., to Elihu Root, Sec’y of War (Sept. 25, 1900), reprinted in H.R. Doc. No. 56-2, pt. 2, at 251, 257 (2d Sess. 1900) (recognizing “[c]onspiring and combining with guerillas” as violation of law of war punished by military commissions during Philippine Insurrection).

Although not numerous, the Civil War-era and World War II-era precedents of trials for conspiracy to violate the law of war before law-of-war military commissions documented above are “plain and unambiguous.” Hamdan, 548 at 602. Both the William Murphy and William Curtis Colepaugh/Erich Gimpel records of trial were reviewed and held to be lawful by the U.S. Army’s highest legal adviser on the law of war–the Judge Advocate General–and were personally passed upon and approved by the President of the United States, acting in his capacity as constitutional Commander-in-Chief of the Army. Moreover, Colonel William Winthrop also personally held in both his 1886 and 1896 treatises on military law and precedents that conspiracy was a violation of the law of war triable by law-of-war military commission, which opinion was consistently adhered to by the U.S. Army in the 1880, 1895, 1901 and 1912 JAG Digests and in actual practice during the Philippine Insurrection, World War II and the Korean War.

To put the matter simply, based on the different statement of facts, as detailed above, “conspiracy to violate the law of war” is, and has been since the Civil War, a violation of the law of war triable by law-of-war military commission under the American common law of war. It would appear, then, that there is “a substantial showing” that “conspiracy to violate the law of war” is a violation of the law of war, thus satisfying the Hamdan plurality’s test for lawfulness. See Hamdan, 548 at 611. Moreover, this consistent and unbroken line of Executive Branch precedent, as expressed in historic U.S. Army practice, has–since the U.S. Supreme Court’s June 2006 ruling in Hamdan v. Rumsfeld–twice been ratified by the Legislative Branch. In October 2006 and October 2009, two successive Congresses and Presidents acting in concert, enacted into law the Military Commissions Act of 2006 and the Military Commissions Act of 2009, each of which recognized conspiracy as an offense triable by military commission. See generally Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (codified at 10 U.S.C. §§ 948a-950w (2006 & Supp. II 2008)); Military Commissions Act of 2009, Pub. L. No. 111-84, div. A, tit. XVIII, 123 Stat. 2574 (codified at 10 U.S.C. §§ 948a-950t (2006 & Supp. IV 2010)). Thus, it would seem that Petitioner Al Bahlul’s contention that “[t]here is an extensive and unanimous history of rejecting conspiracy to commit war crimes”–which is based squarely on the reasoning of the Hamdan plurality–is, itself, historically incorrect.

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