Back in March, I posted a guest post by Haridimos Thravalos on the history of conspiracy prosecutions in military commissions. Thravalos’s post prompted responses from Steve and from Kevin Jon Heller; it showed up immediately in government briefs in Al Nashiri, and it was the subject of argument at the Al Nashiri motions hearing in April.
Now, Thravalos has expanded his post into a full-blown law review article, which was released yesterday by our sister publication, the Harvard National Security Journal. I haven’t read it yet, but one of the journal editors, Mary Ostberg, tells me that the article “follows the same general outline [as the Lawfare post] but expands on each point and includes background regarding the general constitutional authority for military commissions.” It also, she says, has more than 200 footnotes.
The abstract reads as follows:
The U.S. Court of Appeals for the District of Columbia Circuit will soon confront the question of whether, under the Military Commissions Act of 2009, conspiracy to violate the law of war is an offense triable by law-of-war military commission. In June 2006, a plurality of the Supreme Court in Hamdan v. Rumsfeld determined that the Government failed to make a colorable case for the inclusion of conspiracy among those offenses cognizable by law-of-war military commission. The plurality’s reasoning was largely based on its survey of domestic law sources and precedents. That survey, however, was inaccurate and incomplete.
This Article examines and expounds upon the domestic law sources and precedents, spanning from the Civil War to beyond World War II, that inform the issues surrounding the charge of conspiracy to violate the law of war. These sources and precedents are supplemented by the scholarship of highly respected military law historians who continually recognized conspiracy as an offense triable by law-of-war military commission. Crucially, the Hamdan plurality relied on one such scholar for a principle that he did not assert, and this author’s discovery of a critical record-keeping error illuminates the defects in the Hamdan plurality’s rationale.
The Article concludes that a thorough analysis of historical evidence leads to a substantial showing that conspiracy to violate the law of war is, itself, a violation of the law of war that has traditionally and lawfully been tried by law-of-war military commission.