Further to my post from last Thursday on the Ex Post Facto Clause issue in the Nashiri prosecution, Haridimos Thravalos has sent in a response, which I've posted in its entirety below the fold. I'll have a couple of reactions to Thravalos's response later today.
Nashiri, Conspiracy, and the Ex Post Facto “Problem”
An incisive question recently was asked concerning certain historical military commission precedents and their Ex Post Facto Clause implications for pending military commission cases. The question, in pertinent part, reads: “[I]f the whole point . . . is that we’ve all lost track of this obscure historical precedent, doesn’t it necessarily follow that the defendant, as well, could not reasonably have been on notice as to its existence?” It is assumed that the historical precedent referred to is the Civil War-era trial of William Murphy.
The William Murphy precedent is not “obscure”—it has merely been obscured by a plurality of the Supreme Court in Hamdan v. Rumsfeld. Prior to 2006, and well before Mr. Al-Nashiri’s alleged offenses took place, respected commentators on the law of war had repeatedly published this example of a pure law-of-war conspiracy to demonstrate the simple principle that conspiracy is triable by law-of-war military commission.
It is submitted that Mr. Al-Nashiri could “reasonably have been on notice” as to the existence of the principle that conspiracy is triable by law-of-war military commission for three reasons. First, the principle of law distilled from the law-of-war military commission trial of William Murphy is that conspiracy “to violate the laws of war by destroying life or property in aid of the enemy” is, itself, a violation of the law of war triable by law-of-war military commission. As previously described, this was decided by the law-of-war military commission that tried and convicted William Murphy between September 1865 and January 1866, which was upheld by both the Judge Advocate General of the Army and the President of the United States in March 1866, each of whom personally reviewed the record of trial. This principle of law was first published approvingly by U.S. Army Brevet Colonel William Winthrop, the “Blackstone of Military Law,” in his 1880 JAG Digest—which predated Mr. Al-Nashiri’s reported birth by four score and five years—and was reiterated by the United States Army as its official policy in the 1895, 1901 and 1912 JAG Digests, and by Colonel Winthrop personally in his 1886 and 1896 treatises on military law and precedents.
Moreover, the William Murphy precedent is but one example that conspiracy “to violate the laws of war by destroying life or property in aid of the enemy” has, indeed, historically been a violation of the law of war triable by law-of-war military commission. In fact, the William Murphy precedent was not the first law-of-war military commission trial involving conspiracy during the Civil War, and Colonel Winthrop could have selected any number of precedents to demonstrate this principle. In addition to Colonel Winthrop and other law-of-war commentators, the Supreme Court itself has cited the William Murphy precedent approvingly, as demonstrated by the fact that the unanimous Ex parte Quirin Court included the William Murphy precedent in its own list of Civil War-era law-of-war military commission precedents. See Ex parte Quirin, 317 U.S. 1, 32-33 n.10 (1942) (citing approvingly the law-of-war military commission trial of William Murphy as an example of how military commissions during the Civil War were “extensively used for the trial of offenses against the law of war”).
Second, the Civil War-era precedents regarding conspiracy—as well as the military commission precedents regarding conspiracy that followed during the Philippine Insurrection, World War II and the Korean War—need not be offered as the sole and decisive counter to Ex Post Facto Clause, or nullum crimen sine lege, notice issues. In fact, when one delves beneath the excellent Lawfare summaries to read the government’s posted briefs in Mr. Al-Nashiri’s case, one sees that the government does not offer the William Murphy precedent and other conspiracy military commissions in this way. Rather, these precedents demonstrate conclusively that conspiracy historically has been triable by pure law-of-war military commission, a distinct piece of subject-matter jurisdictional analysis.
As Hamdan made clear, the historic practice of law-of-war military commissions is relevant to analyzing military commission jurisdiction. See generally Hamdan v. Rumsfeld, 548 U.S. 557, 595-613 (2006) (surveying historic practice of law-of-war military commissions). During the Philippine Insurrection, for instance, law-of-war military commissions tried conspiracy. See, e.g., Report from G. N. Lieber, J. Advoc. Gen., to Elihu Root, Sec’y of War (Sept. 25, 1900), reprinted in H.R. Doc. No. 56-2, pt. 2, at 251, 257 (2d Sess. 1900) (recognizing “[c]onspiring and combining with guerillas” as violation of law of war tried and punished by military commissions during Philippine Insurrection). During World War II, both the 1942 Nazi Saboteurs (Richard Quirin et al.) and the 1944 Nazi Saboteurs (William Curtis Colepaugh and Erich Gimpel) were tried by law-of-war military commissions convened at Washington, D.C. and Governors Islands, N.Y., respectively, on charges that included conspiracy. See, e.g., Ex parte Quirin, 317 U.S. 1 (1942) (holding that law-of-war military commission convened July 8, 1942 at Washington, D.C. had jurisdiction to try Richard Quirin and seven others); Sec’y of War Henry L. Stimson, General Orders No. 52, War Department, Washington, D.C., July 7, 1945 (approving convictions, but commuting sentences to life imprisonment, of William Curtis Colepaugh and Erich Gimpel, who were tried by law-of-war military commission convened Feb. 6, 1945 at Governors Island, N.Y.). Law-of-war military commissions also had jurisdiction to try conspiracy in overseas theaters of war during World War II. See, e.g., Lieut. Gen. Albert C. Wedemeyer, Letter Order, Headquarters, United States Forces, China Theater, Regulations Governing the Trial of War Criminals, Jan. 21, 1946 (File No. AG 000.5 (21 Jan 46) JA) (making “participation in a common plan or conspiracy” punishable by military commission in China Theater of Operations during World War II). This order with respect to China is particularly noteworthy. Unlike Austria, Germany, Italy and Japan during World War II, China was not occupied militarily by U.S. Armed Forces (or allied armed forces). Rather, U.S. Armed Forces operated in China with the consent of the Chinese government and as a co-belligerent waging war against a common foe. This is significant because China was therefore not subject to American military government. Moreover, martial law applies only to domestic territory. Hence, the only jurisdiction available to military commissions convened in China during and after World War II was, what the Hamdan plurality would describe as, “law-of-war” jurisdiction. Thus, the military commissions convened in China during and after World War II were pure law-of-war military commissions and were explicitly granted jurisdiction to try conspiracy.
Significantly, the U.S. Army maintained its long-held and long-published policy that conspiracy was triable by law-of-war military commission throughout the 1950s—even after the rulings of the International Military Tribunal at Nuremberg, the subsequent proceedings at Nuremberg conducted under the authority of Control Council Law No. 10, and the International Military Tribunal for the Far East at Tokyo. Specifically, U.S. Army General Douglas MacArthur, acting as Commander-in-Chief of the United Nations Command, promulgated rules and regulations governing the trials by United Nations law-of-war military commissions during the Korean War, which were explicitly granted jurisdiction to try conspiracy. See U.N. Command, Rules of Criminal Procedure for Military Commissions of the United Nations Command (Oct. 22, 1950) (making “all attempts to commit, or conspiracies and agreements to commit, as well as inciting, encouraging, aiding, abetting, or permitting violations of the laws and customs of war” committed during Korean War punishable by U.N. military commission). Moreover, the U.S. Army adhered to its historic practice of punishing conspiracy by law-of-war military commission in its 1956 Field Manual governing The Law of Land Warfare, which explicitly stated that conspiracy to commit “war crimes” was “punishable.” See, e.g., U.S. Dep’t of the Army, Field Manual No. 27-10, The Law of Land Warfare ¶ 500 (July 18, 1956) (as amended by Change No. 1 of July 15, 1976) (“Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity, and war crimes are punishable.”).
Third, notice that the defendant’s conduct was punishable is provided amply by both group and inchoate criminality laws of numerous nations, as well as under the joint criminal enterprise theory in international law.
For these three reasons, Mr. Al-Nashiri—in fact, any defendant—could “reasonably have been on notice” as to the existence of these plain and unambiguous historical precedents, thus allaying one of the Supreme Court’s “central concerns” of the Ex Post Facto Clause: “the lack of fair notice.” See Weaver v. Graham, 450 U.S. 24, 30 (1981).
Separately, the Government did, in fact, cite the purportedly “obscure historical precedent” of William Murphy in its February 2006 brief in Hamdan. See Brief for Respondents at 27-28, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (No. 05-184). Their reference was to the principle of law with respect to conspiracy that Colonel Winthrop described in his 1880 JAG Digest, an opinion shared by Captain Charles Roscoe Howland and subsequently published in the captain’s 1912 JAG Digest. See id. (citing 1912 JAG Digest with respect to conspiracy, as well as Colonel Winthrop’s Military Law and Precedents and the Colepaugh/Gimpel trial).