The Court of Military Commission Review heard two arguments today and NIMJ student interns were there to watch. Here is their report:
The first argument was in Bahlul. Bahlul is the convicted propagandist for al-Qaeda. The questions at issue were:
1. Assuming that the charges allege underlying conduct that violate the law of armed conflict and that “joint criminal enterprise” (JCE) is a theory of individual criminal liability under the law of armed conflict, what, if any impact does the “joint criminal enterprise” theory of individual criminal liability have on the Court’s determinations of whether Charges 1-3 constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the constitution?

2. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation?

The appellant’s (Bahlul) argument centered around notice of the charge. Is the offense charged a war crime? If not, what is the jurisdictional basis? If jurisdiction didn’t arise till the MCA was enacted, is this ex post facto criminality? Central to the defense argument was the idea the standard of review for determining whether an offense is a war crime should be as follows: it must be plain and unambiguous that the offense was a war crime when the act was carried out. The appellant argued also that the JCE theory of liability has no source and is not recognized in the law of war. The “common plan” theory of liability referred to in the Army Field Manual is not the same as JCE, argued the appellant. An example was given of the chief Nazi Propagandist that was acquitted because he was not part of actually carrying out the genocidal plan.

The appellant also argued that JCE is not a stand-alone crime. They argued that no actual crime was a part of the case against al Bahlul–there were offenses but no war crimes that he intended to commit. The central issue is whether Material Support for Terrorism (MST) and inchoate assistance to al Qaeda were war crimes. The argument was that there has been a conflation of jurisdiction with the actual crime being tried. The factual predicate to coming before a military commission is being a member of al Qaeda; but being a member of al-Qaeda is not enough to sentence someone to life in prison.

In answering Question 2, the appellant argued that “duties matter” and the government gave no good authority to the contrary. One of the cases the government relied on (a Civil War case involving the execution of two abolitionists) is “bad law” and the court “should not breathe life into this case to save the conviction.”

The government argued that in answering Question 1, The Military Commissions Act can decide this issue and Congress is owed great deference. They argued that al Bahlul’s conduct was considered a war crime when it was committed (joining, participating in a JCE, knowing, and intending that the conspiracy be carried out). One of the CMCR judges took issue with the idea that intending to commit a crime is enough without completion of the crime. The government responded simply that al Bahlul knew at the time that he could be punished for his actions. The government could not give specific examples of how this crime existed before the 2006. But the MCA states itself that it is codifying preexisting law. One judge asked specifically for an example of a tribunal in which an inchoate conspiracy charge where no underlying act was committed was tried. The government did not provide an example. The government did argue that U.S. practice should be given weight to show that al-Bahlul was on notice. The government relied on Field Manual 27-10, Leiber Code, trials following the Lincoln Assassination, and Quirin.

In rebuttal the appellant argued that the SS were tried for “desire, intent to contribute” to the crime, but there was an underlying crime that took place . It is inappropriate to rely on domestic law, like auto theft. Just because a crime is considered a crime everywhere does not mean that it is a war crime. If the government wants to proceed under domestic law, they should do so through the federal courts. The appellant also argued that the Court is bound by the rule of law and should follow the tribunals in Nuremberg, Dachau, Tokyo, and Baghdad, which all rejected incohate liability. Such liability “cheapens” the idea of war crimes.

The second hearing was in Hamdan.

According to the appellant, three propositions are under appeal and each independently are a reason to vacate the material support for terrorism charge:
1. MST is not, and has never been, a law of war offense
2. Even if MST is today a war crime, it is ex post facto because it was not at the time of the commission of the underlying acts
3. A trial by military commission has less protections and violates the rights of Hamdan.

The appellant wanted a strict standard of review: PLAIN and UNAMBIGUOUS. They argued that a line of cases calls for close policing of military tribunals and a high standard. Common law of war says that an offense must be plain and unambiguously a war crime at the time of the acts committed. The appellant also argued that JCE is not a separate offense, but a theory of liability to hold a perpetrator responsible where he is part of a common plan. He must contribute to the underlying act. Even if it were accepted, it is the liability for an underlying offense. If a common plan is not itself an offense, there is no culpability. The appellant also argued that providing material support is not in international law a crime. There was also a discussion about how terrorism is the attacking/murder of protected people for the purpose of intimidating, coercing or retaliating against government conduct; whereas MST is the intent to provide material support (as defined in the MCA) to an organization who committed terrorism in the past.

The appellant said that we should not conflate jurisdictional predicates with the substantive offense; to find jurisdiction over a person, the defendant must be an alien, unprivileged, enemy combatant (there has been a finding he is a member of al-Qaeda); but this is not sufficient to find culpability. Instead, we must look at the elements of MST and compare it with the government’s authorities provided. The conduct targeted by the government is not criminal in this way (providing service, driving, acting as a bodyguard. None of the acts committed by Hamdan are violations of the law of war. Congress has the authority to define the laws of war, but this means they are supposed to make the laws of war more clear and precise; they do not have the ability to “make” international law, as these laws arise out of norms.

In response, the government provided a factual account of Hamdan’s actions in Afghanistan (joined Al-Qaeda knowing about the Fatwas, took Osama to meetings where he planned various attacks, etc.). The appellant subsequently took issue with several of the facts. For example, the appellant insisted that there is no evidence Hamdan pledged loyalty to Osama and he felt the need to remind the court that Hamdan was acquitted of several things the government mentioned.

Returning to the government’s argument, it was foreseeable, when Hamdan joined al-Qaeda, that there would be killings of unarmed civilians. He knew of past killings and the likelihood of more. Congress merely codified existing law. The government was asked to name a case where MST was tried before a tribunal. The government could not name a specific case; instead, the government said to look at the conduct that is being tried under the name MST. It is merely “aiding the enemy” that has been re-named in the present conflict. The government named several instances of military commissions wherein crimes similar to the conduct of MST were tried: commissions in Florida by General Jackson (future U.S. President) where they called it “savage acts of cruelty against civilians”; trying Cherokee Indian supporters; and the prosecutions of industrialists who furnished gas to the Nazi SS to conduct their genocide.

The government also argued that deference to Congress is necessary. The MCA was enacted under 2 different Presidents, 2 different Congresses, 2 different political parties. Following the principle of Youngstown, when the President and Congress act together, presidential power is at its apex. The government concluded that “if there is no recognition of codifying MST, the rationale for civilized international law is bankrupt” – it would be an example of what you CALL an offense trumping substantive conduct

The appellant’s rebuttal highlighted the testimony of the General Counsel for the DoD before the Senate Armed Services Committee in 2009 – in which he said that MST is NOT traditionally a violation of the laws of war. Obama made clear military commissions are for trying the laws of war; yet, Congress ignored that.

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