Terrorism Trials: Legislative Development

Peter Margulies Reports on AALS II

By Benjamin Wittes
Tuesday, January 10, 2012, 2:43 PM

Here is Part II of Peter Margulies's reporting from AALS:

AALS Federal Courts Debate II: Military Commissions and Material Support

The lively federal courts panel at the American Association of Law Schools conference also sparked disagreement on trials in military commissions.  Marty Lederman recalled that the administration had advised Congress in 2009 that courts might find that “material support” of terrorism was not a crime under the law of war.  As a result, the administration recommended that legislation listing crimes triable by military commissions should exclude material support from the statute’s ambit.  As Marty and Steve Vladeck noted, the status of material support under the law of war is now before the D.C. Circuit in Hamdan, a case involving Osama bin Laden’s former driver. 

Hamdan has the rare opportunity for a private individual to be a party in two profoundly important court decisions.  In a 2006 case that Steve helped brief, the Supreme Court in Hamdan  ruled that the President could not unilaterally establish military commissions.  Congress then included material support in the Military Commissions Act of 2006.  Hamdan was convicted of material support of terrorism in 2008 and released in early 2009, but has appealed his conviction, which the Court of Military Commission Review (CMCR) recently affirmed.

Steve observed that the material support issue has two principal parts:

(1) Can Congress list material support as a war crime, relying on its power under Article I of the Constitution to “define and punish offenses against the law of nations”? 


(2) Even if Congress going forward can decide that material support is a war crime, would trying detainees for acts committed before the legislation violate the Constitution’s ban on ex post facto laws? 

Steve and Curt Bradley differed starkly on the answer to question 1.  Steve answered “No,” saying Congress lacked the power, while Curt strongly implied that Congress could make material support a war crime if it wished.  Steve suggested that Congress’s power to designate conduct as a war crime was strictly limited.  As Steve has long maintained, some limits seem obvious: presumably Congress could not make littering a war crime.  However, Steve didn’t stop there: He then argued that Congress’s power to designate war crimes was as circumscribed as federal courts’ authority to hear Alien Tort Statute suits which allege violations of the law of nations.  The Supreme Court has carefully limited ATS suits to those charging violations of norms prevailing in 1789, including piracy and violations of diplomatic immunity, and a handful of modern norms of comparable stature.  By analogy, Steve claimed, Congress’s authority to designate war crimes under the “law of nations” clause should be similarly restricted.  Under this reasoning, unless material support was already a crime under the law of war, Congress would lack the power to classify it as such.

This was a bridge too far for Professor Bradley.  Curt countered that the Supreme Court’s ATS decision, Sosa v. Alvarez-Machain, curbs the power of federal courts to create federal common law, but does not abridge Congress’s power.  In effect, Curt argued, Steve had read “define” out of the “define and punish” clause, leaving Congress as the scribe of international law scholars, a veritable Bartleby among branches.  While Judge Kavanaugh, who will sit on the panel deciding Hamdan, stayed out of this discussion, his high regard for Congress’s role suggests that he would find Curt’s argument more persuasive. 

But what of question 2, which asks whether designating material support as a war crime in 2006 would be an ex post facto law, if used to convict Hamdan of conduct that occurred in 2001?  Marty and Steve suggested that the CMCR which decided that material support was a war crime, had relied primarily on the Nuremberg membership cases.  These cases made membership in a criminal organization such as the Nazi S.S. a war crime.  However, as I’ve explained in a recent paper, The Fog of War Reform: Change and Structure in the Law of Armed Conflict After September 11, membership offenses had a mixed history even within the Nuremberg tribunals.  Prosecutors cut back on use of this charge, worrying that membership was an unduly amorphous basis for guilt, at least for those who provided generic service to organizations.  At the panel, Marty asserted that international law bodies since Nuremberg, such as the International Law Commission, have not embraced the concept of membership offenses. 

A nuanced account of material support would reject both the CMCR’s ringing endorsement and the categorical rejection of material support as a war crime.  Taking a third path, this account would preserve the viability of membership offenses, but cabin those offenses in ways that would exclude Hamdan from the definition’s scope.  On this tailored view, discussed in my earlier exchange with Kevin Jon Heller, a membership offense is still viable if it charges one of the following types of conduct involving personal responsibility for violence.  An individual could be charged with directly participating in a unit of a terrorist group that killed civilians, just as German soldiers in the notorious Einsatzgruppen were charged with war crimes even if they personally did not kill noncombatants.  In the alternative, he could be charged with personally financing or sponsoring a criminal organization, like the German industrialists who endearingly called themselves “Friends of Himmler” because of their knowing monetary support of the murderous S.S. and its psychotic chief.  On this view, material support might be a viable charge for the Al Qaeda propagandist and planner Ali Hamza al-Bahlul, who had prior knowledge of the 9/11 attacks, but not for the Yemeni foot-soldier Hamdan, who had no direct role in the 9/11 operation.