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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
International Law, Article III, and Constitutional Limits on Military Commissions
Next week, the D.C. Circuit will hear oral argument on one of the most important remaining questions in the long-running Guantanamo detainee litigation: whether, and to what extent, international law should constrain military commission jurisdiction to try offenses, like inchoate conspiracy, that do not constitute crimes under international law.
In July, the D.C. Circuit en banc ruled in Al Bahlul v. United Statesthat the Ex Post Facto Clause prohibited prosecution in a military commission of material support for terrorism or solicitation—neither of which is a crime under international law—for conduct that predated the 2006 act making them offenses triable by commission. The court, however, upheld the defendant’s prosecution for conspiracy, concluding, under plain error review, that it was an offense traditionally triable by military commission as a domestic war crime and thus did not violate the Ex Post Facto Clause. It remanded the case for consideration of Bahlul’s remaining claims, including his contention that trial of non-international-law violations by military commission exceeds Congress’ authority and violate the Constitution’s guarantee of a criminal trial. Those issues are the subject of next week’s argument.
Bahlul's implications extend beyond the current Guantanamo detainee pool, informing whether, and under what circumstances, the U.S. can prosecute future terrorism-related offenses in military courts. It also raises the question of international law’s role in constitutional adjudication. (For an excellent overview of the issues, see the exchange between Steve Vladeck and Peter Margulies over at Lawfare, starting here and here.
In Ex parte Quirin the Supreme Court recognized a limited exception to the constitutional requirement of trying crimes in Article III courts. Military commissions, the Court said, could try enemy belligerents for violations of the law of war. Quirin specified that by the “law of war” it meant the international law of war, an understanding the Court adhered to four years later in Yamishita. Bahlul asks whether the Constitution should recognize a distinct domestic common law basis for trying offenders in military commissions for war crimes.
In general, the law-of-war commission rests on a different rationale than other exercises of military jurisdiction: courts-martial are premised on maintaining discipline over U.S. servicemembers; and military commissions operating in areas under martial law or in occupied territory are premised on exigency. Notably, the Supreme Court has defined exigency strictly, as the unavailability of the regular civilian courts, and not as a matter of perceived comparative advantage or convenience.
Quirin did not address commission jurisdiction over so-called non-international war crimes, such as conspiracy and material support for terrorism, which Congress made offenses triable by military commission in 2006. But Quirin treaded carefully in recognizing an international-law-based exception to Article III criminal trials, emphasizing the narrowness of its holding. More recently, in Hamdan v. Rumsfeld, Justice Stevens described Quirin—by then the subject of considerable judicial and academic criticism—as the “high-water mark of military power to try enemy combatant for war crimes.” The main concern posed by the law-of-war commission is the threat to the constitutional protections provided by Article III criminal process and traditional supremacy of civilian over military tribunals.
In a forthcoming piece, I offer some additional justifications for an international law-based boundary and, more specifically, for limiting war crimes triable in military commissions to those established under international law. Various scholars, including David Golove and Dan Hulsebosch, have advanced our understanding of the Constitution’s internationalist dimensions. International norms not only provide a gloss on specific provisions of the Constitution’s text (e.g., the Define and Punish Clause, the Declare War Clause), but also, more broadly, suggest a desire to integrate the United States into the community of civilized states through compliance with international law. In this context, integration can be demonstrated by restricting commission jurisdiction to exceptional offenses that constitute war crimes under international law—and not, conversely, by using a novel theory of domestic war crimes to avoid limits on vicarious liability developed in international treaties and by international tribunals.
An international law-line also draws support from recent Supreme Court jurisprudence on specialized non-Article III tribunals. Requiring that the offense constitute a crime under international law provides the type of formal boundary marker that the Court has elsewhere said can prevent an erosion of Article III supremacy. Even if international law is evolving, it provides a discernable line—one applied frequently by international criminal tribunals in war crimes prosecutions. By the same token, the government’s U.S. common law-of-war theory might be characterized as the kind of innovation the Court viewed skeptically in decisions such as Stern v. Marshall. Put another way, it would seem anomalous to relax one margin of Article III jurisdiction on pragmatic grounds while insisting on rigidity elsewhere.
International law, to be sure, is not a perfect means of defining constitutional limits on military commissions. For example, a tradition of military commissions’ trying spying—which is not a war crime under international law—poses a doctrinal wrinkle (although one that can be explained partly by the fact that this particular branch of military jurisdiction rested on the mistaken assumption that spying did, in fact, constitute an offense under international law).
Further, the definition of war crimes under international law is evolving, and so an international law-based line does not necessarily foreclose an inflationary effect on military jurisdiction. At the same time military jurisdiction to try even international war crimes—outside narrow circumstances—cuts against a growing trend to curtail military courts generally. U.N. Draft Principles Governing the Administration of Justice (“Decaux Principles”), for example, would limit the jurisdiction of military courts “to offenses of a strictly military nature committed by military personnel,” at least absent situations of exigency.
U.S. jurisprudence, in the end, is caught between Quirin’s limited sanctioning of law-of-war commissions even where civilian courts are open, on one hand, and the traditional primacy of Article III criminal jurisdiction articulated in Ex parte Milligan and its progeny, on the other. The stakes demand greater certainty. International law offers that much, at least compared to the open invitation to experimentation provided by a domestic war crimes theory, which would permit the channeling of a considerable range of terrorism offenses to military courts (at least where unconstrained by ex post facto concerns). It would permit continuation of a dubious experiment, one with a distinctly unimpressive track record since commissions were reborn more than a decade ago. Posted
by Jonathan Hafetz [link]