Both because of my own biases and because Wells is going to be posting more of a blow-by-blow at some point (on top of his initial reaction, which I basically share), I'll spare readers from a comprehensive account of this morning's 59-minute-long oral argument in Hamdan v. United States before a standing room crowd in the D.C. Circuit. Instead, I'll just share three off-the-cuff reactions I had to the argument--and to what may happen from here...
I. Judge Ginsburg and the (Non-)Mootness Issue
As Wells points out, it didn't take long (30 seconds, by my watch) to deduce that exactly one of the three panel members is concerned about the mootness question. Judge Ginsburg asked fairly pointed questions of both counsel about Sibron v. New York, and whether the government may rebut the presumption that criminal convictions have collateral consequences that prevent them from becoming moot even after the sentence has been served. But given that the government itself conceded that it did not believe it could rebut that presumption here, and given Chief Judge Sentelle's observation that he couldn't find a single case in which a direct post-conviction appeal was held to be moot, I think the only safe bet I'd make about the outcome here is that there will be no more than one vote for mootness (although there may be one--Judge Ginsburg asked surprisingly few questions on the merits). That said, as Wells notes, the panel did order supplemental briefing on the mootness question (out of deference to Judge Ginsburg), which, if nothing else, means it will be at least two months before we'll see an opinion (and perhaps longer). So, don't hold your breath...
II. Judge Kavanaugh, the Ex Post Facto Issue, and the Significance of Spying
From early in the proceedings, it was clear that Judge Kavanaugh was skeptical of the government's argument. To be sure, Judge Kavanaugh was uncertain about the limits on Congress's power to "define" violations of the law of nations going forward -- several times he wondered how international common law could develop unless nations -- and Congress, in particular -- were permitted to prompt such developments through innovation. But Judge Kavanaugh also repeatedly reminded Hamdan's counsel that he didn't need to prove that Congress categorically lacked the power to define material support to terrorism as a war crime in order to prevail, since even if Congress could so provide prospectively, Hamdan still wins if MST wasn't a recognized violation of the laws of war [we'll get to what that encompasses] between 1996 and November 2001--i.e., the period during which Hamdan engaged in the relevant conduct. Thus, when John De Pue stepped to the lectern for the government, it was Judge Kavanaugh who exacted perhaps the most important concession in this litigation -- the government's current view (which rejects the conclusion of the CMCR) -- that not only wasn't MST recognized as a violation of the international laws of war between 1996 and November 2001, it is not even so recognized under international law today. That's not the end of the issue, of course (as I'll explain below). But I, at least, was (pleasantly) surprised by just how quickly Judge Kavanaugh dispensed with the rationale underlying the military commission and Court of Military Commission Review's analyses in this case.
Instead, the crux of the government's argument turned on their new theory, i.e., that MST is an offense against the "domestic common law of war." According to the government, it was clearly established by 1996 that MST was a domestic common law of war violation triable by a military commission, even if it wasn't clear that it was an international law of war violation. Judge Kavanaugh seemed skeptical, suggesting at one point that "this dichotomy [between international and domestic common law] that's come out of nowhere seems unusual to me." Further to that point, Judge Kavanaugh repeatedly cited to Justice Stevens' plurality opinion in Hamdan v. Rumsfeld, and its analysis of why conspiracy wasn't clearly a violation of the laws of war (at least prior to the MCA). But De Pue persisted, pointing out that the Supreme Court in Ex parte Quirin appeared to endorse military tribunals for the offense of spying, even though that is not traditionally recognized as a war crime under international law.
I actually think the spying question is one of the hardest issues in the case, at least to the extent it suggests that the jurisdiction of law-of-war military commissions may encompass offenses broader than those recognized as war crimes under international law. Further to that point, I thought Joe McMillan (Hamdan's counsel) offered a particularly good response in his rebuttal. First, he argued, although the Court in Quirin identifies spying as a crime historically subject to trial by military commission, it didn't actually specifically uphold the spying charges in Quirin itself, focusing its analysis instead on the sabotage charge (which was a much easier case for a violation of the laws of war). The fact that the Quirin Court avoided deciding whether spying violated the laws of war might, if anything, call into question whether such espionage charges can be tried outside of Article III, at least where Article III courts are available. Second, and in any event, spying has always been understood by the international community, as William Winthrop explained in his famous treatise Military Law and Precedents, to be a uniquely military offense (even if not a war crime) that may in certain circumstances be tried in a military commission. As McMillian put it, "there's nothing uniquely American" about trying espionage before a military commission. Thus, even if one believes that the Constitution permits the trial of spies in military commissions for violations of doemstic espionage statutes, that doesn't actually prove the government's argument, i.e., that military commissions may try any and all offenses against the "domestic common law of war." All it proves is that the jurisdiction of military commissions may extend to a small number of well-established international law offenses that aren't war crimes, as such--the offense of espionage, in particular, which was sometimes tried by military tribunal at the Founding, especially in circumstances where domestic courts were unavailable.
But there's a third point to be made here, as well: Even if the spying example does support the government's claim that there is a body of domestic offenses triable by military commissions other than recognized violations of the international laws of war (to be clear, I remain skeptical), that doesn't prove that MST is one of the offenses that is so triable... Indeed, this, to me, was the dog that didn't bark at the oral argument:
To accept the government's position on the merits, one not only has to believe that the spying analogy does a whole lot of work in carving out an exception to the requirements of article III trials for domestic criminal offenses (notwithstanding Justice Stevens' plurality opinion in Hamdan), but also that MST is like spying--and has a comparable well-established historical pedigree. In fact, as the briefs and today's argument reveal, there is nowhere near as clear a historical record of examples of conduct that we would today call MST that was historically subject to trial by military commission, as such. (None of the counsel or judges at the argument today cited any such cases.) Put simply, is it really plausible that someone in Hamdan's position could have reasonably been on notice in 1996 that the conduct that constitutes MST--in effect, active support, short of aiding and abetting, of an organization that itself has engaged in war crimes--might subject him to trial by a military commission because of an established (but long forgotten) common law history of such offenses based solely on a smattering (at best) set of obscure Civil War precedents in quite different circumstances? (Indeed, before the USA PATRIOT Act was passed in late October 2001, Hamdan couldn't have even been charged in a civilian court with MST.)
It seems pretty clear from the argument that Judge Kavanaugh appreciates all of these distinctions. I don't know what that means about how he's inclined to rule, but it's certainly true that, the more one sees each of these nuances, the harder the government's case becomes...
III. Chief Judge Sentelle and the Martens Clause
I haven't said much yet about Chief Judge Sentelle--partly because his other colleagues largely dominated the questioning (Judge Ginsburg at the beginning on mootness; Judge Kavanaugh on the merits thereafter). But right at the very end, Chief Judge Sentelle made an intriguing intervention, focusing on the language of the so-called "Martens Clause" of the 1899 Hague Convention (a variant of which also appears in the 1907 Convention). Specifically, the Martens Clause (which was cited by the Supreme Court in Quirin) provides that
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.
The question Chief Judge Sentelle raised was whether this provision might indicate a consensus understanding that the "law of war" is comprised of multiple sources, including domestic state practice, and thereby might encompass offenses not yet recognized by the international community. But I think the far better reading of both the text and purpose of the Martens Clause is as providing that the Hague Conventions were not exclusive, and that international law includes both positive and customary law--a point no one seriously disputes. Whether the Clause does more as a matter of international law is a matter of some debate, but I don't think there's a lot to the argument that the Clause necessarily proves the existence of a "domestic common law of war." And the relevant claim in Hamdan is not that MST isn't recognized as a violation of positive international law (that's fairly obvious). It's that it isn't recognized as a violation of customary international law, either (unlike, e.g., perfidy). The Martens Clause unquestionably supports the notion that the international laws of war include common law developments. But it's a fairly significant leap from there to the conclusion that military commissions may try offenses against the "domestic" common law of war.
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So what does all of this mean, going forward? Candidly, I have no idea. As Wells suggests, the superficial impression one takes away from the argument is that there's one vote to dismiss on mootness grounds (Ginsburg), one vote to uphold on the merits (Sentelle), and one vote to reverse on the merits (Kavanaugh). Needless to say, that would be a remarkably messy (and confusing) result--virtually necessitating en banc review. If Judge Kavanaugh is as skeptical of the government's position as he appeared to be at oral argument, however, perhaps he might find a way to convince one or both of his colleagues to join a narrow opinion relying on the Ex Post Facto Clause and invalidating Hamdan's conviction. Or, because I see the world in rose-colored glasses, perhaps this is in fact an easy case for the government, the Court of Appeals will affirm, and the Supreme Court will deny certiorari.
All I know for sure is that the mootness issue really was a (one-judge-inspired) frolic, and the argument went much better for Hamdan than I was expecting.