The en banc decision of the Court of Military Commission Review (“CMCR”) in United States v. Hamdan concludes that it was constitutional for Congress to make material support for terrorism an offense triable by military commission. This won’t be the last word on the question; the next stop is the D.C. Circuit, and perhaps after that the Supreme Court. But make no mistake about the importance of the topic itself. Material support charges are not central for those commission cases in which defendants are linked to specific terrorist attacks, such as al-Nashiri and the Cole bombing and KSM and the 9/11 attacks. But for many prospective commission defendants, material support would be key (along with conspiracy) precisely because the defendant is not linked to specific violent acts but rather is linked to al Qaeda as a whole. If in the end commissions cannot try that offense, then the rationale for relying on commissions rather than civilian trials for such cases will be greatly weakened (though it is important to recall that the Title 18 versions of material support (18 USC 2339A and 18 USC 2339B) had limited extraterritorial scope prior to 2001 and 2004). Indeed, one would think Congress would want to be *darn sure* of the answer to this question before it contemplated legislation actually forbidding civilian criminal trials in favor of commission proceedings (which might not end up having this important charging option) or detention (which can last only so long as hostilities last)).... In any event, it is well worth a look to see how persuasive the CMCR’s analysis of the issue appears to be, and to flag the issues that deserve close scrutiny as the case move forward.
My comments below do follow the sequence of the CMCR’s analysis, but I’ve chosen to frame matters through a series of questions that are particularly important. This helps to cut through the underbrush of the 86-page opinion.
What is the gravamen of the dispute?
The core question is whether the Constitution forbids making this offense triable by military commission as opposed to a civilian criminal court. Congress has the power under Article I to define and punish offenses against the law of nations, including the laws of war. But is “material support” a violation of the laws of war, such that this power comes into play? Hamdan argued that it is not, but the CMCR disagreed.
Before considering the evidence of whether material support violates the laws of war, we might ask whether judges should second-guess the legislative judgment that it does. Should courts give binding deference to that legislative determination?
I don’t think the government actually urged this line, and in any event the CMCR is clear at the outset that it is not giving binding deference to Congress’s own assessment of this question of law, notwithstanding its power to “define” offenses against the law of nations. The CMCR notes that deference is owed in the realm of foreign affairs and war powers, but not binding deference. That is an accurate doctrinal statement, I think, though note that it does not get down into the weeds as to just what deference really means in this setting (something between politeness and binding deference, obviously, but there are many positions along the remaining bit of spectrum).
There is no universal and exhaustive list of offenses against the laws of war which we can simply reference as the definitive statement of which offenses Congress may make triable by commission. Some amount of indeterminacy and debate is inevitable. But how much is too much? More precisely, how much evidence must there be in order to show that offense “exists” for this purpose, and are their limits as to what kinds of examples count?
I wish the CMCR had spent more time with this, as it strikes me as extremely important. The most direct discussion is on p. 22, where the CMCR writes: “There is no constitutional prerequisite of universal, international, or scholarly unanimity before Congress may act...” That strikes me as correct, but it leaves open the critical question of what amount of evidence, and what kind, is necessary instead. There is a spectrum of possibilities ranging from complete deference to Congress (such that it can just make up new offenses) to a requirement of extremely clear universal consensus. Both are rejected in this opinion, but what point on the remaining spectrum—e.g., some evidence, substantial evidence, etc.—provides the governing test? Even if American practice/precedents alone can do the trick, notably, we still need a test to decide how much is enough to prove the point.
If it is enough that there simply be a handful of relevant or semi-relevant past examples, however old, then as the discussion below explains the government will be in good shape in the end. But if the doctrinal test instead if framed in more demanding terms, the government will be in trouble, for the evidence recounted below is anything but overwhelming.
The D.C. Circuit should be *very* clear in addressing this point at the next round, and one hopes there will be substantial briefing on it from the parties and amici. If the issue is inadequately addressed, it may invite the view that all of the work analogizing to or distinguishing past examples amounts to mere window-dressing masking a predetermined conclusion.
In compiling the evidence that material support is an offense against the law of nations (let alone the laws of war in particular) must one identify examples that specifically purport to reflect the law of nations, or is mere domestic criminalization relevant? That is, can you say there is a consensus that something violates the law of nations simply because that something is illegal in many/most/all domestic criminal law systems?
This is an important doctrinal point, as some of the evidence relied upon by the CMCR is simply a matter of domestic criminal law here and elsewhere. I’m not sure why such examples matter here, absent evidence that a state has criminalized something domestically in an effort to enforce the laws of war in particular.
Let’s assume, for example, that just about every country in the world criminalizes car theft. We would not claim that car theft also violates the law of nations, let alone the laws of war.
So, what is the evidence that some number of states (recall my point above about the indeterminacy of how this should be measured) considered material support (or something akin to it under another name) to be a violation of the laws of war prior to the MCA 2006?
The bulk of the CMCR’s opinion is devoted to itemizing the evidence of treating material support, of analogous offenses, as law of war violations.
1) International conventions and declarations relating to terrorism
The first batch of examples involve multilateral treaties, some of which concern the law of war and some of which do not. It is not obvious that the latter group have relevance here, but even if we assume that they did, there is the separate problem that most of the material cited serves to show that terrorism itself—not necessarily material support—has been condemned and criminalized. The terrorism point is correct, but not relevant. What matters is whether there is evidence in these materials that something akin to material support has also been condemned. Is there?
Well, yes. On p. 38 the opinion emphasizes that the 1997 Bombing Convention at Article 2, ¶ 2 criminalizes actions that “in any other way contributes to the commission of one or more [substantive] offenses ... by a group of persons acting with a common purpose” where the support is “intentional and either ... made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.” This is, in my view, precisely on point as an analogue to 18 USC 2339A, though not 2339B (which requires no such mens rea). Let me explain:
The United States criminalized material support for specific criminal acts in 1994, in 18 USC 2339A. It is, basically, an aiding-and-abetting statute linked to a few dozen predicate offenses, without respect to who the recipient might be. Then in 1996 we added 2339B, which is an embargo-style statute criminalizing material support given to specifically-designated foreign terrorist organizations, irrespective of the use to which the support might be put. The MCA incorporates both these approaches into the commission system. The language from the 1997 Bombing Convention, cited above, seems quite like the 2339A version.
All this is not necessarily helpful to the government, though. First, the 1997 Bombing Convention is not in any way framed as a discussion of what the laws of war permit or forbid. Second, it’s actual mandate calls for states to pass domestic criminal legislation regarding such conduct, in contrast to, say, the statute of the ICC which identifies actual offenses against the law of nations.
The CMCR opinion goes on to discuss the 1999 Financing Convention, which is a closer fit to 2339B when it comes to support in the form of financing. But like the 1997 Bombing Convention, it is not a law of war instrument, and seems focused in any event on requiring passage of domestic legislation.
2) International Criminal Tribunal Decisions, the ICC, and Joint Criminal Enterprise
These are certainly more fitting places to look for evidence of what might be deemed a law of war violation. Under this heading, the CMCR opinion dwells at great length on the relevance of the Joint Criminal Enterprise (“JCE”) concept, which as the CMCR correctly noted is a “theory of liability” for linking a defendant to a “specific crime, and it is not a stand-alone substantive offense.” In that respect, it is rather similar to our domestic law concept of Pinkerton liability in which members of a conspiracy are on the hook for specific acts committed by their colleagues – i.e., vicarious liability.
The government, of course, does not seek to hold Hamdan liable for any of the many specific atrocities committed by al Qaeda members. Rather, the gravamen of the material support charge against him is that the acts of support to al Qaeda where either unlawful without respect to Hamdan’s intentions (by analogy to 2339B) or unlawful in more of a 2339A sense of intending to facilitate al Qaeda’s unlawful ends (but without respect to any particular plot). The former (2339B-style) approach is not at all like JCE, while the latter (2339A-style) approach is a closer fit (though not precisely on point).
Bottom line? JCE is much less like material support than the opinion suggests, but at least in its narrower 2339A-style aspect the analogy has something to it. This may be little help to the government, then, since the bulk of the utility in having a material support charging option in the commission system lies in the ability to prosecute a person linked to al Qaeda but not to any particular al Qaeda operation or activity. On the other hand, a close look at how broadly 2339A has been charged in civilian courts over the past decade suggests that the 2339A approach may be more open-ended than is commonly assumed.
3) Domestic Terrorism Laws
In addition to the US domestic material support laws, the opinion refers to comparable frameworks in other domestic jurisdictions. For the reasons noted above, however, domestic laws that do not purport to identify law of war violations are not particularly useful to this analysis.
4) Prosecutions for the Crime of Aiding/Supporting the Enemy
The CMCR opinion dwells at length on the history of the crime of aiding the enemy during war. The fundamental obstacle here is whether this offense has any application to persons who owe no duty of loyalty to the prosecuting state, as Hamdan owed none to the United States.
Exhibit A is the infamous decision by Andrew Jackson to prosecute two British citizens for aiding the Seminoles during Jackson’s incursion into Florida in 1818. The prosecution’s invocation of this precedent a few months ago occasioned much commentary and criticism, as the episode is quite notorious. The CMCR opinion points out, however, that the notoriety stems from Jackson’s decision to impose a sentence of execution on the men despite the tribunal’s recommendation of a lighter sentence, and because of the overall notoriety of the First Seminole War—not necessarily because of the use of an aiding-the-enemy charge against British citizens. I’m not sure if that is correct as a statement of the historical reception of the case, but it may be. In any event, there it is as one example. Are there others?
The opinion goes on to discuss the extensive Civil War experience with commission proceedings against guerillas and those who aided guerillas (and also the Lincoln conspirators). It seems to me that none of these examples are precisely on point given the duty of loyalty issue, notwithstanding the opinion’s observation that in many instances aiding-the-enemy was charged without any specification that having a duty of loyalty was part of the charged offense. A similar discussion of precedents from the Philippines Insurrection arguably confronts the same issue, though again the CMCR points out that prosecutions at that time did not necessarily treat the existence of a duty of loyalty as relevant, let alone necessary.
5) Nuremberg and Prosecution for Membership in a Criminal Organization
Perhaps the most interesting aspect of the opinion is its treatment of Articles 9 and 10 of the London Charter, which provided for the declaration of certain organizations to be criminal (e.g., the SS) and then for the prosecution of the members of such groups based on their membership alone, without need of proof linking them to particular crimes. The opinion points out that dozens were convicted of such offenses after WWII. Is this analogous to material support? In part yes, but they are not coextensive. They overlap insofar as material support can consist of a person providing his own self to a group as “personnel” subject to the group’s direction and control; that is to say, material support when applied in that manner constitutes a membership crime.
What about other forms of support, where the main issue is giving aid to a criminal group rather than being a member of it? That question may not be very important in practice, since it is unlikely that there will be commission proceedings against a non-al Qaeda member who is not directly linked to some particular act of violence. But in any event, the CMCR opinion cites the NMT’s Flick Case, in which members of the “Friends of Himmler” provided financial support and expertise/counseling to the SS. I’m looking forward to learning more about the case, but at least from the CMCR’s account it appears to be quite analogous to a 2339B-style material support prosecution.
A very important question raised by these examples is whether the cases under Articles 9 and 10 have been “rejected” in some relevant sense over the intervening years. My understanding is that there has at least been criticism of the membership approach, if not something stronger. A key point for briefing to the D.C. Circuit thus should be an exploration of the weight to which these examples are entitled.
There is a bit more in the opinion (about 20th Century US military manuals) but nothing terribly on point or interesting. And so the bottom line is this:
The best evidence marshaled by the CMCR is:
- 2339A-style language in the 1997 Bombing Convention (though this does not concern the law of war as such);
- financing-related language in another convention (also not specific to the law of war);
- the partial analogy to JCE when it comes to 2339A-style liability;
- the troubled (and very old) precedent of the British citizens in the First Seminole War;
- and the seemingly quite relevant 2339B-style precedents under Articles 9 and 10 of the London Charter after WWII (though these two are generations old, and have been subject to criticism).
That’s hardly overwhelming, but it’s not nothing either, particularly given the indeterminacy of the quantitative/qualitative standards relevant to deciding how much is enough.