Cross-posted at Opinio Juris.
I have written before about the Government’s new position in the Hamdan case. As you will recall, Hamdan was convicted by a military commission for providing material support, sentenced to five and a half years, and released for time served. He is now appealing his conviction.
The latest government brief before the D.C. Circuit represents a significant change in theory regarding the justification for military commissions. In the past, it was widely assumed that Congressional enactment of the Military Commissions Act was based on their constitutional power to define and punish violations against the law of nations. Now the administration is adding an additional basis: the power to punish offenses traditionally tried before military commissions pursuant the U.S. common law of war. This power stems from the penumbra of Congress’ war-making powers in Article I.
There are a lot of implications to the new analysis, not all of which I have fully digested yet. Under the Define and Punish Clause, Congress is assumed to be tying itself to an evolving body of law – international law – whose content is increasingly complex, sophisticated, and refined. In contrast, the new penumbral argument ties the Congressional power to a largely static body of law – military commission law – because for the most part the United States didn’t use military commissions between the end of World War II and 9/11. Furthermore, many of the World War II military commission cases like Quirin predate the Geneva Convention, Common Article 3, and all of the great advancements of international criminal law. So the new theory feels a lot like getting into a time machine and emerging with the law of war as it exists in 1945 (or even during the Civil War), not as it exists today.
Aside from the exact status of this “U.S. common law of war” – a term that I am a bit skeptical about -- I want to raise another issue here, and that’s the status of conspiracy as an inchoate offence under this new theory.
In the original Hamdan case, a four-justice plurality concluded that conspiracy was not a violation of the law of nations and therefore could not be prosecuted before a military commission. Kennedy joined the plurality as to the final outcome of the case but did not join the conspiracy section of the opinion. This left the status of conspiracy in some question, especially given the recent changes in the Supreme Court’s composition.
However, if the D.C. Circuit or the Supreme Court were to adopt the government’s new theory of military commissions, I think the crime of conspiracy would definitely withstand judicial scrutiny. In fact, it would be a much easier argument. Under the government’s proposed structure, the question is whether there is significant precedent under U.S. law for punishing certain crimes before a military commission during wartime. In contrast, the problem with conspiracy according to the Hamdan four-justice plurality was that it had been largely rejected at Nuremberg and subsequent international conventions and tribunals (with the exception of conspiracy to commit genocide). Under the new scheme, however, the international angle would be completely off the table. Conspiracy’s status as a distinctively common law criminal concept would no longer be fatal to its application at a military commission. In fact, conspiracy’s deep roots in the common law might even be an asset under the new analysis.
Unfortunately, the D.C. Circuit Hamdan case won’t deal with conspiracy directly, since he was acquitted of that charge and it is therefore not on appeal. But I would think that another case down the pipeline will certainly address this question.