an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
After a (very) bumpy decade, the Guantanamo military commissions are again at an important juncture. The government must decide whether to appeal a D.C. Circuit ruling that precludes bringing war crimes charges against detainees that, well, never committed war crimes (i.e., most of the remaining 166 Guantanamo detainees). Should the government decline to seek Supreme Court review, it would help limit the already considerable damage done by military commissions. It could also, however, have the unintended effect of further embedding the existing system of prolonged indefinite detention without trial.
In October, the D.C. Circuit ruled in Hamdan v. United States ("Hamdan II") that prosecutors could not charge detainees with material support for terrorism (MST) in a military commission for conduct that pre-dated enactment of the 2006 Military Commissions Act ("2006 MCA"). Judge Kavanaugh's panel opinion reasoned that the 2006 MCA, which outlawed MST, applied retroactively only to offenses that were war crimes under international law at the time. MST, he said, clearly was not, and therefore this charge could not be used to prosecute detainees in a military commission for pre-2006 conduct.
Yesterday, in another case, Al-Bahlul v. United States, the government informed the D.C. Circuit of its view that Hamdan II's logic applied equally to conspiracy to commit war crimes and solicitation of others to commit war crimes (two of the three charges against al-Bahlul; the third was MST). Al-Bahlul, who had been accused of providing propaganda video recordings for al Qaeda, had been convicted by a military commission and sentenced to life in prison. But because the charges against him, the government said, were not violations of international law when committed, the conviction had to be reversed under binding circuit precedent (i.e., Hamdan II). For good measure, the government also withdrew the conspiracy charges against Khalid Shaikh Mohammed and four others accused of being accomplices in the 9/11 attacks. Other charges against the 9/11 defendants remain based on their role in the attacks, including the charge of attacking civilians.
The government's brief to the D.C. Circuit also maintained, however, that Hamdan II was wrongly decided. While MST and conspiracy might not be violations of international law, it argued, they violate the U.S. common law of war and, as such, may be prosecuted in a military commission, including for conduct that pre-dates the 2006 MCA. The brief makes clear that the government is preserving its argument for further review, once the D.C. Circuit issues its decision in Al-Bahlul.
On Monday, the government must file a certiorari petition in the Supreme Court, should it wish to keep alive the possibility of MST charges for current Guantanamo detainees. Its 90-day clock for certiorari review on the charge of conspiracy will start to run once a decision is issued in Al-Bahlul.
As detailed in Charlie Savage's recent N.Y. Times story, administration officials are divided over whether to continue to fight for MST and conspiracy as commission charges. It is also possible that the government will elect to pursue an appeal in Al-Bahlul, but not Hamdan II. (Follow up N.Y. Times story on the administration in-fighting is here). Brig. Gen. Mark Martins, the chief military commission prosecutor, reportedly favors abandoning both charges. He is right. The notion of a separate "U.S. common law of war"--distinct from international law--is deeply problematic. The notion of war crimes rests on an internationally shared ideal of proscribed conduct at odds with the United States' go-it-alone approach. Making MST or conspiracy war crimes, moreover, would sweep in a wide range of conduct--much of it unexceptional (merely joining an enemy force can be defined as material support)--and thereby diminish their gravity. There is little expressive value in branding someone a war criminal when the term may be applied to virtually every member of the opposing force.
If, as I hope, the government decides not to appeal in Hamdan II, and then not to appeal in Al-Bahlul, it will at least limit commission charges to a handful of "high-value" detainees who are accused of committing or aiding an actual terrorist act.
It will, however, also likely increase the government's reliance on long-term detention, as it will preclude the prosecution of run-of-the-mill Guantanamo detainees who may, for example, have attended an al Qaeda training camp in Afghanistan a decade ago. In theory, these detainees could be prosecuted in federal court (assuming there is evidence to convict), but limits on the extraterritorial reach of the federal MST statute in effect at the time likely preclude an Article III prosecution in most cases (putting aside existing congressional bars on transferring Guantanamo detainees to the U.S. for any purpose). A military commission charge of MST might in many cases have led to a conviction and imposition of a brief sentence, followed by a transfer home, which is what happened in Hamdan's case. The onerous congressional restrictions on transferring Guantanamo detainees to other countries do not apply to those who have been convicted by a military commission, making repatriation more likely for the convicted than the uncharged. Without the possibility of a trial, however, it is even less likely that prisoners will leave Guantanamo in the foreseeable future since under the 2001 Authorization for Use of Military Force ("AUMF") they may be held in preventive detention until the end of the armed conflict with al Qaeda and associated forces.
And the Obama Military Commissions are still unavoidably violative of customary anf treaty-based international law, including some of the due process standards already recognized by the Supreme Court in its earlier decision in Hamdan. See http://ssrn.com/abstract=1997478 The important question becomes whether the Obama Administration wishes to comply with the President's unavoidable constitutionally-based mandate faithfully to execute the "Laws," which have always included customary and treaty-based laws of war (see http://ssrn.com/abstract=1458638 )and have included human rights laws so often in our history JJ Paust