This piece originally appeared on Lawfare.
The oral arguments in Monday's D.C. Circuit en banc review of Ali Hamza al Bahlul's military commission conspiracy conviction essentially came down to competing views of history. The government concedes that conspiracy is not a recognized war crime under international law. But rather than accepting chief prosecutor Brigadier General Mark Martins' plan to move forward using more credible charges, the Justice Department argued that the Guantánamo commissions can try conspiracy based on historical U.S. practices. Relying largely on research by prosecution team member Haridimos Thravalos (discussed on Lawfare here and here), the government asserts the existence of a "domestic" U.S. law of war which includes conspiracy to overcome concerns that its initial codification in the Military Commissions Acts of 2006 cannot be applied retroactively. Al Bahlul naturally disagrees.
After reviewing each authority cited by Thravalos' article and the government's briefs, I believe that al Bahlul has the best of this argument for reasons I expressed to the court in an amicus briefand have more fully developed in a draft law review article available here. As I see it, there are two basic flaws in the domestic law arguments:
(1) Virtually every credible reference to the law of war, including the sources the government relies on, describes the law of war as being part of international law.
(2) None of the cases cited as domestic "law of war" conspiracy prosecutions really stand up to exacting scrutiny. On closer examination, each one seems to (a) represent the prosecution of completed, rather than inchoate, conduct; (b) ground the conspiracy charges in domestic legal jurisdiction under martial law or military government rather than the law of war per se; or, (c) use conspiracy as a mode of liability rather than charging conspiracy as a substantive offense.During oral argument, for example, Deputy Solicitor General Ian Gershengorn referenced the Army's 1956 law of war manual, FM 27-10, several times. Paragraph 500 of the manual does identify conspiracy as a war crime. But it appears in a section identified as "Crimes Under International Law" which is part of a chapter titled "Remedies for Violation of International Law: War Crimes." A preceding paragraph, 498, identifies "war crimes" as "a crime under international law" while the subsequent paragraph 505.e. explicitly states that "enemy personnel charged with war crimes are tried directly under international law without recourse to the statutes of the United States." Since the government concedes that conspiracy does not violate the international law of war, the manual logically refutes the idea that conspiracy can be tried by law of war military commissions. Moreover, the three Supreme Court cases regularly relied upon by military commission proponents -Quirin, Yamashita, and Eisentrager - each upheld military jurisdiction only after finding that at least one charge actually stated a violation of international law.
Even if there were a credible basis for concluding that a valid U.S. domestic law of war exists, none of the military cases cited to date provide clear support for the existence of conspiracy as a law of war violation. It is important to understand that U.S. military commissions historically exercised three separate heads of jurisdiction, serving (1) as "military government" tribunals in occupied enemy territory (their original use in the Mexican War); (2) as "martial law" courts in U.S. territory (a common use in the Civil War); and (3) as law of war courts. In each of the first two settings, commissions exercise domestic law jurisdiction and can prosecute offenses defined by the existing local civilian criminal code as well as any specific crimes the military commander has defined in notices to the local populace. Inchoate offenses, including conspiracy, are recognized crimes in the Anglo-American legal tradition, so there would not be a "notice" issue with martial law courts trying this crime within the United States during the Civil War. However, conspiracy could not fairly be prosecuted by a dedicated law of war tribunal unless it was an established part of that corpus juris.
The most famous Civil War cases cited during Monday's argument, those of Henry Wirz and the Lincoln conspirators, were not inchoate conspiracies at all. Wirz was charged with actual deaths at the notorious Andersonville camp he commanded and Lincoln was, of course, actually assassinated. The cited case of George St. Leger Grenfell is more complex. His charges did include conspiracy to violate the law of war, but the tribunal exercised martial law authority. Grenfell's co-defendants were Copperhead Democrats, and the judge advocate, Henry L. Burnett had previously prosecuted Lambdin P. Milligan. Burnett responded to challenges to the commission's jurisdiction with a detailed assertion of the Army's martial law - not law of war - authority, which the trial panel upheld. It must be remembered that the Army believed it could exercise martial law concurrently with functioning civilian courts throughout the war. It was only the 1866 Milligan decision which repudiated this view.
Thravalos' article and the government's briefs place extensive reliance on the case of Civil War "boat burner" William Murphy, whose conviction was ultimately overturned by Supreme Court Justice Samuel F. Miller riding circuit. Miller relied on Milligan to find Murphy's trial an unlawful exercise of martial law. Thravalos argues that it was really a law of war trial; indeed, one charge did allege a law of war violation. But the conspiracy charge did not and identifies Murphy as a civilian; i.e., an individual amenable to martial law jurisdiction rather than an enemy who would be subject to the law of war. William Winthrop, the leading 19th century military justice expert (whom the government selectively cites), specifically identifies the Murphy case (along with those of Grenfell, Wirz, and the Lincoln conspirators) as mixed martial law and law of war cases. So it is inaccurate to treat these as dedicated law of war precedents.
The other case receiving significant mention Monday was that of William Colepaugh and Erich Gimpel, who were tried as spies in 1945. Much emphasis has been placed on a "recently discovered" 1945 memo from Assistant Attorney General Tom C. Clark to the Army board reviewing the conviction which endeavored to justify the conspiracy charge. This memo is problematic for several reasons. Clark was formally in charge of the prosecution; the memo is thus an ex parte submission to the reviewing board with no evident notice or opportunity to comment provided to the defense. It provides a number of brief excerpts from military justice sources referencing past uses of the term "conspiracy" without providing any meaningful context. But most duplicitously, it implies that the Supreme Court's Quirin decision upheld the conspiracy charge against the 1942 Nazi saboteurs when the Court did not in fact consider the merits of that count.
My draft article provides further critical analysis of each of these "precedents," together with others identified by Thravalos, and offers a detailed critique of his disagreement with portions of Justice Stevens' Hamdan opinion. It is my belief that none of the cases identified to date convincingly support the existence of conspiracy as a domestic law of war charge - if there were such a thing; I think the available evidence overwhelmingly demonstrates that there is not.
I find it particularly disconcerting that the government of the nation whose military personnel have the greatest exposure around the world would argue in favor of a "domestic" law of war, particularly when it criminally prosecuted Japanese officers after World War II for subjecting U.S. personnel to Japanese law. If there is a U.S. domestic law of war, allowing us to identify, charges from two plus centuries of U.S. history, other nations can make the same claim. This puts any captured American military personnel at real future risk of prosecution for offenses nations like Iran or China might be able to dredge up from their two plus millennia of history. The court was clear Monday that it will decide this case based on law and not on the "impact" of its decision. But were the D.C. Circuit, or ultimately the Supreme Court, to hold that there is a "domestic U.S. law of war," it will predictably redound to the detriment of our own military.