Yesterday, we posted the government's supplemental brief in the Al Bahlul military commission appeal in the D.C. Circuit, the headline of which was the government's concession that Judge Kavanaugh's opinion for the Court of Appeals in Hamdan II requires reversal of Bahlul's conviction, as well. Without question, though, the far more interesting part of the brief is the rest of it--wherein the government "preserve[s] . . . for further review" the question whether Hamdan II is rightly decided (and explains why, in the government's view, it isn't). The crux of the government's argument is two-fold: First, and contra Hamdan II, Article 21 of the UCMJ does encompass offenses against the "U.S. common law of war," and so the Military Commissions Act of 2006 raises no retroactivity problem to the extent that it codifies such offenses. Second, "conspiracy" as a standalone inchoate crime is such an offense because of the U.S. historical precedent for war crimes trials based upon that charge.
Below the fold, I offer four reflections on the implications (and merits) of this argument...
I. What Happens Next?
Given Charlie Savage's story in Tuesday's New York Times, perhaps the most interesting question is what yesterday's brief signals about what's going to happen from here... To my mind (and as I told Peter Finn for this story in today's Washington Post), the brief reads like the government still hasn't decided whether to pursue certiorari in either Hamdan II or Bahlul (en banc would be futile given that Judge Kavanaugh wrote the panel opinion in Hamdan II). But what does seem clear from the brief is that the government believes it has a much stronger argument in Bahlul (on the conspiracy charge) than it did in Hamdan II (on material support)--see, for example, the "particularly with respect to conspiracy" language on page 21. Given that, if my math is right, the deadline for filing a cert. petition in Hamdan is next Tuesday, it seems most likely that the government will ask for an extension in Hamdan, and then wait to file anything in that case until it decides whether to seek certiorari in Bahlul...
II. Article 21 and the U.S. Common Law of War
Turning to the merits, the centerpiece of the government's argument in its supplemental brief is that Hamdan II misconstrued Article 21 of the UCMJ--the (disputed but now-established) statutory authorization for military commissions that all concede does apply to the current cases, since it's been on the books since at least 1916. Here's the pre-2006 version (emphasis added):
The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.
In Hamdan II, Judge Kavanaugh specifically held that "The 'law of war' referenced in 10 U.S.C. § 821 is the international law of war." If he is right, then the game's over--neither material support nor conspiracy as a standalone inchoate offense are clearly recognized as violations of the international laws of war, and this is exactly why the government's brief in Bahlul concedes that Hamdan II requires reversal of Bahlul's conviction, as well.
The government's response is that "The history and purpose of Article 21 . . . make clear that its reference to 'the law of war' encompasses offenses that were traditionally tried by U.S. military commissions regardless of whether those offenses were clearly-established war crimes under the international law of armed conflict." But the only support the government can muster for this interpretation of Article 21 is a solitary--and equivocal--quote at a Senate subcommittee hearing from General Crowder, then TJAG of the Army, that the purpose of Article 21 was to "save to those war courts the jurisdiction they now have." Leaving aside whether one quote at one congressional hearing could furnish sufficient support for reading the statute as the government would, Crowder's quote hardly speaks conclusively to the issue at hand...
Crowder aside, the larger problem for the government's argument is the Supreme Court precedent cutting the other way. Rather than rehash it myself, I'll just paste Judge Kavanaugh's own citations from Hamdan II (footnotes omitted):
See Hamdan, 548 U.S. at 603 (plurality) (act is law of war offense when “universal agreement and practice both in this country and internationally” recognize it as such) (internal quotation marks omitted); id. at 610 (analyzing international sources to determine whether conspiracy was “recognized violation of the law of war”); id. at 641 (Kennedy, J., concurring) (“the law of war” referenced in 10 U.S.C. § 821 “derives from rules and precepts of the law of nations” and is “the body of international law governing armed conflict”) (internal quotation marks omitted); Quirin, 317 U.S. at 29 (“law of war” referenced in 10 U.S.C. § 821 is a “branch of international law”); id. at 27–28 (The “law of war” is “that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.”); see also Instructions for the Government of Armies of the United States in the Field (Lieber Code), General Orders No. 100, arts. 27 & 40 (Apr. 24, 1863) (describing the law of war as a “branch” of the “law of nations”); O.L.C. Memorandum from Patrick F. Philbin to Alberto R. Gonzales 5 (Nov. 6, 2001) (“laws of war” are “considered a part of the ‘Law of Nations' ”); id. at 29 (“the term ‘law of war’ used in 10 U.S.C. § 821 refers to the same body of international law now usually referred to as the ‘laws of armed conflict’”).
In other words, the government's disagreement here is not just with the D.C. Circuit's decision in Hamdan II, but also with both the plurality and Justice Kennedy's analysis of Article 21 in Hamdan I, with the unanimous decision in Ex parte Quirin, and with the very OLC memo on which the original post-9/11 military commissions were based.
Finally, it's worth reiterating a point that many have lost sight of: As Justice Stevens emphasized in Hamdan I, even the Quirin Court's "narrower" interpretation of Article 21 (as authorizing commissions for violations of the international laws of war) was "controversial" (Justice Scalia once called it "not this Court's finest hour"). The language itself (go back and look at it!) is hardly the clear statement one would have expected in this area, and the provision reads more like a reservation of jurisdiction than a conferral thereof. Given that baggage, and the weight of precedent interpreting it to only encompass violations of the international laws of war, one quote at one Senate subcommittee hearing seems an awfully thin reed on which to base a contrary (and deeply problematic) interpretation of the military jurisdiction contemplated by Article 21...
III. Conspiracy as an Inchoate Offense Under the U.S. Common Law of War
Even if the government is right on Article 21--i.e., that Congress did intend in 1916 to authorize military commission trials for offenses against the "U.S. common law of war," that still begs the question: Is conspiracy as a standalone inchoate offense (as opposed to conspiracy to commit some other underlying--and completed--offense) clearly recognized as part of that body of law?
Here, the government's argument is, also, surprisingly thin. The three examples the government marshals of conspiracy prosecutions in law-of-war military commissions (as opposed to occupation courts) all involve conspiracy to commit a completed offense (see Supp. Br. at 18-19). The government acknowledges the distinction between these offenses and conspiracy as an inchoate crime, but then argues that "the fact that conspiracy charges were sometimes, but not always, accompanied by allegations of completed offenses does not establish that a completed offense is required to sustain the conspiracy charge . . . ." No, it doesn't. But the burden is on the government to identify clear examples of law-of-war military commissions trying conspiracy as a standalone inchoate offense--not on Bahlul to prove the absence thereof.
Part of why the distinction between conspiracy to commit a completed offense and conspiracy as an inchoate offense matters is the notice issue. In the cases cited by the government in their brief, it's reasonable to believe that the defendants knew or should have known that the underlying offenses were war crimes--harming prisoners of war; destroying civilian shipping; attacking civilian targets (to wit, Chicago). But where is the notice to defendants like Bahlul that their "conspiracy," standing alone, was a war crime? Where is the requisite agreement between Bahlul and a co-conspirator to commit an underlying unlawful act?
Ultimately, even if Article 21 can be given the capacious interpretation for which the government argues (as the above suggests, I think that's a stretch), it's just not clear that such a reading would make a difference in either Hamdan II or Al Bahlul... There may well be a "U.S. common law of war," and maybe Congress did intend in 1916 to codify the jurisdiction of military commissions to try offenses against it. But it must be the case that, even if all of these things are true, a norm must be "firmly grounded" in such domestic common law in order to be triable as a criminal offense under Article 21. And it's just not clear that conspiracy as a standalone inchoate offense meets that standard.
IV. ...and there's still that pesky Article III problem...
Finally, and much to my chagrin, the government's brief completely ignores the Article III elephant in the room, i.e., what authority supports the proposition that Congress may subject violations of the domestic common law of war to trial by a non-Article III military commission, as opposed to a civilian court. The omission here is all the more amusing (galling?) given the amicus brief filed by the NIMJ in Al Bahlul (which I co-authored) that specifically explains why there's a serious Article III issue with military commissions based upon domestic, rather than international, war crimes. I won't rehash the argument here (which has a lot to do with the scope of the jury-trial exceptions recognized in Quirin); I'll just link to my earlier posts on the subject for those interested in further reading.
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Suffice it to say, I think the government made the right call on the merits in Bahlul, but I also think, contra DOJ, that Hamdan II is rightly decided. To convince the Supreme Court otherwise, the government would have to show that (1) the Court has consistently underinterpreted Article 21 of the UCMJ as only encompassing international war crimes, even though the Court itself has recognized that even the narrower interpretation is "controversial"; (2) conspiracy as an inchoate offense is clearly established as a violation of the U.S. common law of war; and (3) there's no Article III problem with having military commissions try offenses that aren't violations of the international laws of war even where the civilian courts are open and their process is unobstructed.
To find five Justices for any of those three propositions would be difficult; to find five votes for all of them... well... maybe the government won't seek certiorari after all...