Next up are AE 49 and AE 51–the defense’s two broadsides against the charge of terrorism as a war crime. Paradis says that this offense, like conspiracy, lies beyond the jurisdiction of the commission and presents the same brand of troubling ex post facto problem. On a macro level, he says, all the same arguments apply to terrorism that apply to conspiracy, as far as his motions are concerned.
With one exception, which, Paradis says, cuts strongly in his client’s favor: terrorism’s status is more controversial than that of conspiracy in international law, which is already debatable enough. There may be a budding international norm against terrorism as war crime, according to Paradis. Since 9/11, the international community has taken terrorism seriously and moved swiftly to combat it. But we are not there yet, as far as international law is concerned. In fact, we are no closer to a customary norm against terrorism, Paradis argues, then we were twenty years ago. That was when the D.C. Circuit held, in its Tel-Oren decision, that terrorism was not a violation of the law of nations actionable under the Alien Tort Statute. Fast-forward about twenty years to 2002, when the Second Circuit reached a nearly identical outcome, though in a different case. There, Paradis says, the defendant was accused of terrorism. He challenged the jurisdiction of the federal court because no Americans had been killed. But the district court rejected that argument, on grounds that terrorism is a violation of the law of nations. On appeal, though, the Second Circuit acknowledged the desire to hold the defendant accountable, but still reversed. Why? Because, Paradis argues, the appeals court said that there was not yet any norm of international criminal liability for terrorism.
Judge Pohl stops him and asks: Is the question what terrorism is, or does it have to do with the international status of the offense? For Paradis, the debates are one and the same, and there just is no international consensus as to the offense’s status–however defined–as evidenced by the two appellate cases he cited. What was the issue in the D.C. Circuit case, Judge Pohl asks? The case involved a bombing by the PLO, answers Paradis, and a 1984 lawsuit brought against the PLO by the bombing victims’ relatives under the Alien Tort Statute. Though divided on other points, the appeals court, with Judge Bork writing, unanimously rejected terrorism as a universal norm. But, Judge Pohl continues, how much does that matter? Can you really say that using the threat of violence to influence the government–or any similar definition of terrorism–is not viewed as an international crime today?
Paradis: yes, because terrorism is not a war crime as he stands before the judge today. All countries see auto theft as a crime, the lawyer explains, but that does not make it a war crime. The question for this court is whether terrorism states a violation of the law of war. Paradis mentions Martins, who had said during his argument that Al-Nashiri’s alleged actions were not innocent when committed. But there is a big difference between a crime and a war crime, and an even bigger difference between a war crime and a knowing but not yet criminalized wrong. We know this because war crimes have elements, which tell us whether certain conduct is truly criminal. Take away that principle of legality, says Paradis, and you then fall headlong into the realm of crime by analogy. The United States has never accepted it, though, Paradis notes, the Soviet Bloc was all for it. Not exactly lovely company, as far as historical precedents go. Again, Paradis goes on, the idea is not whether this guy did something bad, or something we hate. The question of legality instead is whether this man committed an offense, consisting of elements that the government must prove to the jury at a trial. If the lone inquiry is whether the jury hates the accused, then it is not a trial but some moral exercise. And there is a crime of terror, he adds, under the law of war, as recognized by the ICTY in a case dealing with the siege of Sarajevo, where a general had ordered shelling and sniping over the course of several years. Ten thousand civilians were shot in all–and the ICTY sustained the charge against the general because the elements of the offense of terror were satisfied. But again, says Paradis, there’s no international accord about the elements of a terrorism offense, and for good reason: if politically motivated violence were all that was required, then we would have the criminalization of warfare–as applicable to our enemies as to guerrilla warriors like the much-lauded French Resistance. And criminalizing the French Resistance is just what the international community has wanted not to do, and what has prevented terrorism from becoming a law of war violation.
Paradis winds up: because terrorism is not an offense against the law of war, it should be dismissed as beyond the jurisdiction of the commission; or, alternatively, as prohibited on ex post facto grounds, given that the Congress waited until after Al-Nashiri’s capture to define terrorism as a crime.
Judge Pohl asks about the appellate cases, which struggled with the definition of terrorism. The defense lawyer says these support his claim that there is no international agreement about the offense’s status: no two American judges, much less the wider world, can agree about what the offense is. It therefore has no elements, and cannot be charged.
Paradis senses an opportunity to close loop, and to say a few words about the federal Ex Post Facto Clause and its impact on the terrorism charge in this case. The clause, he says, is violated when elements of an offense are removed or changed or added retroactively–and that is exactly what happened here. Congress first proclaimed terrorism an offense against the law of war–in 2006, long after Al-Nashiri’s alleged conduct.
Over to Mark Martins, who agrees that the conspiracy argument overlaps greatly with the argument about terrorism. He therefore takes a page from Paradis’ book, and picks out a few select points about terrorism–which, in his view, is very much an offense within commission jurisdiction, and is fully consistent with the ban on congressional passage of ex post facto laws.
He first cites the CMCR decisions, to nobody’s surprise. According to Martins, Judge Pohl should pay heed to the two decisions by CMCR which met this issue and found that terrorism is cognizable in a commission setting. And, Martins continues, the siege of Sarajevo is indeed relevant, in that it supports a larger point of his about terrorism. The law of armed conflict long has prohibited attacks on civilians; that is the essential aspect of terrorism, which Congress has articulated more clearly in the MCA. If all attacks on civilians are prohibited, then the same must be true of attacks designed to intimidate populations or to influence governmental policy. Congress, Martins says, thus has chosen to further codify an offense that has been with us at least since 1919 and the Conference of Paris. In fact, far from overreaching, Congress has made this terrorism offense more rigorous: under the statute, terrorism is harder to prove, given the new scienter requirement. The defense thus has been given great protection, in the form of a more defined and certain terrorism charge. And that resulted from further specification of a longstanding though vague offense, not the creation of a brand new one.
Paradis mentioned guerilla warfare, Martins notes, and that allows him a transition. Commissions, he says, are the way irregulars have been prosecuted traditionally – though often for spreading fear and panic. Here, the United States is using its traditional law of war tribunal to prosecute that same type of offense. An attack on civilians, Martins says, is at its core an effort to spread terror. He sits down.
The defense has only a few comments in rebuttal, says Paradis. It is different to rain down terror on civilians in Sarajevo than it is to carry out an attack designed to influence a government. They just are not the same thing, and cannot be collapsed into one.
This talk of attacking to influence a government prompts a question from the court. Isn’t a part of the terrorism offense also the status of the accused? Judge Pohl says that in conflicts between nations, there is nothing improper about shelling the other side. But if an unlawful belligerent does so, then we have a law of war violation. Right?
If done with perfidy, yes, that would be an offense, says Paradis. But simply being an unlawful belligerent is not a crime in the modern era–no matter what Congress has done.
With this, Judge Pohl calls for a quick break, taking the matter under advisement.