Peter Margulies of Roger Williams School of Law writes in with the following comments on the Hamdan decision:
The D.C. Circuit’s decision today in Hamdan reaches the right result, but employs an unduly stark test that misreads both international law and the Framers’ intent. If followed in subsequent cases such as al Bahlul v. United States, the flaws in the Hamdan opinion will clash with the pragmatic approach at the heart of the Framers’ design. A more flexible, functional test would have vacated Hamdan’s conviction, while leaving space for the materially different cases of the future. Writing for the panel in Hamdan, Judge Kavanaugh employs what I in a recent paper forthcoming in the Fordham International Law Journal entitled, Defining, Punishing, and Membership in the Community of Nations: Material Support Charges in Military Commissions, have called a categorical approach. The categorical approach adopted by the Hamdan panel asks only if prior war crimes tribunals have charged defendants with material support. However, this is the wrong question. The appropriate test should be whether, as a functional matter, military commissions have charged defendants with conduct analogous to the conduct at issue. That functional test would reach a result identical to the panel’s on the legality of Hamdan’s conviction. However, it would yield a different result in al Bahlul, which is currently awaiting argument before a different panel of the D.C. Circuit. To be sure, the Hamdan panel’s decision has a number of virtues. It rejects the government’s sweeping view that, regardless of international law, the “United States common law of war” authorizes prosecution of material support. As the panel rightly points out, the Framers’ language and intent does not support this position. The Framers drafted the Define and Punish Clause, which grants Congress the power to define and punish offenses against the “law of nations,” to reassure the world that the federal government could address the violations of international norms such as diplomatic immunity that occurred during the Articles of Confederation period. This vision of compliance with international law is consistent with viewing US practice as informing the development of customary international law. However, it rules out replacing that body of law with a distinctive and different US corpus of legal authority. Indeed, to contemplate doing so would effectively turn the Framers’ careful architecture on its head.
Moreover, as the panel points out, US practice does not support liability for the generic foot-soldier conduct of Hamdan, who was Osama bin Laden’s driver and allegedly traded in weapons for al Qaeda at bin Laden’s behest. The Civil War precedents typically involve two kinds of conduct: 1) allegations of complicity in specific acts of violence, such as bridge burning, that would be considered sabotage under the law of war, or, 2) offenses such as trading with the enemy that were based on the defendant’s owing a duty of allegiance to the United States. The government never alleged that Hamdan fit either of these categories. After this promising beginning disposing of Hamdan’s case, however, the panel’s categorical approach fails to address the different issues raised in al Bahlul. Al Bahlul was not merely a foot soldier, but served as bin Laden’s personal propagandist. In that capacity, he was an after the fact accessory to the September 11 attacks, who distributed “martyr’s wills” prepared by two of the 9/11 attackers, including Mohammad Atta, the attackers’ leader in the US. Al Qaeda planned the 9/11 attacks to maximize propaganda advantage, and the testaments prepared by the hijackers were a central element of the propaganda campaign. Both bin Laden and the hijackers themselves expected that the testaments would be released after the hijackers’ deaths. Under the circumstances, al Bahlul’s after the fact conduct fulfilled a shared understanding before the fact analogous to the aiding and abetting that is punishable under international law. The Hamdan panel’s rejoinder to this point is rigidly mechanical in a fashion that the Framers would not have recognized. In Federalist No. 37, Madison noted the difficulty of “delineating the several objects and limits of different codes of laws… [including] common law… [and] maritime law.” This difficulty was echoed by Justice Story in United States v. Smith, who noted that the law of nations could not be “completely ascertained and defined” in any preexisting code, or one that would be drafted in the foreseeable future. For Madison and Story, the difficulty of codification required a more flexible understanding of customary international law which accorded some deference to Congress’s understanding of the contemporary landscape. An 1887 case, United States v. Arjona, reinforced this perspective, finding that Congress could criminalize international counterfeiting under the Define and Punish Clause, even though no treaties or treatises barred such conduct. Rather than remain stymied by the lack of codification, the Arjona Court reasoned from the structure of international relations, finding that counterfeiters, like pirates before them, undermined the global legal and commercial system. That pernicious effect supported Congress’s action, even if formal codes had yet to catch up. The test of Congress’s authority was functional, not rigidly formalistic. In contrast, the Hamdan panel takes a far more literal tack, saying only that if the government wished to charge Hamdan with aiding and abetting liability, it could have done so. The panel could have left open the possibility that convictions like al Bahlul’s entailed conduct analogous to aiding and abetting a clear war crime: the slaughter of civilians on September 11. That would have dovetailed with the Framers’ intent, which was not to leave the new nation helpless to deal with transnational threats. Moreover, a functional approach would have been far more in keeping with the flexible approach to retroactivity taken by international tribunals and the Supreme Court in the adjudication of war crimes. Every international tribunal, including Nuremberg and the International Criminal Tribunal for the Former Yugoslavia (ICTY), has imposed retroactive liability. While Nuremberg’s imposition of liability for acts of aggression and the ICTY’s convictions of individuals for participation in a “Joint Criminal Enterprise” remain controversial, more straightforward cases of aiding and abetting liability have not attracted comparable criticism. In Ex parte Quirin (the Nazi saboteurs case), the Supreme Court adopted a similar approach. It declared in dicta of unusual precision that espionage was a clear violation of the common law of war. In stating this proposition unequivocally, the Court glossed over the actual state of play in international law, which regarded espionage as conduct which nations were authorized to prosecute. Echoing Justice Story’s opinion in Smith, the Quirin Court warned against hamstringing Congress with an unduly “meticulous” demarcation of the law of nations’ “ultimate boundaries.” The Hamdan panel could have taken its cue from these cases and defined the elements of material support narrowly, to track aiding and abetting liability. That path would have avoided the problems with retroactivity in Hamdan’s case, while preserving flexibility in future cases. Avoidance has a long pedigree in American jurisprudence, including decisions such as Yates v. United States, which avoided the “danger zone” of the First Amendment by narrowly reading a Cold War statute that prohibited membership in the Communist Party. The D.C. Circuit’s opting instead for a categorical approach disposes neatly of Hamdan’s case. However, it fails to do justice to the pragmatic vision favored by both international law and the Framers.