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Friday, October 26, 2012

The American Obsession with the Concept of Support

A pair of recent court decisions have thrown into stark relief the continuing obsession by our governmental leaders with the legal category of "support"-- a concept that provides the foundation for much of the current legal architecture of the armed conflict with al Qaeda.  Moreover, even though courts continue to raise serious concerns with the concept in numerous different contexts, the Executive and legislative branches keep using it.  More importantly, I'm not even sure that the concept is needed any more, but for some reason Congress and the Administration are fixated on it.  

Let me explain.  The takeaway from all of this is that I wonder if "support" should be allowed to die a dignified death and put to rest with great thanks for the work that it has already performed, but with certain knowledge that its successors are better up to the challenge.

So let's start with the first problem with the concept of support:

In September, U.S. District Court Judge Kathrine Forrest issued an injunction preventing the government from enforcing the NDAA provision that authorizes the detention of any individual who "substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."  The passage of the NDAA was very controversial because it expressed a Congressional preference for military detention over regular civilian detention.

But the reason that Judge Forrest found that the provision was unconstitutional had little to do with due process concerns over military detention.  Rather, Judge Forrest concluded that the content and application of the phrase "substantially supported" was so vague as to raise First Amendment concerns. Since the government has refused to say that mere speech can never constitute substantial support, the plaintiffs in the case had argued that their journalistic activities might be considered substantial support and therefore their free speech rights were effectively chilled.  I suppose one reason the government does not wish to concede that mere speech can never constitute substantial support is that Anwar
Awlaki's al-Qaeda activity was largely confined to propaganda-filled speeches, though the government also maintains that he was directly involved in approving multiple terror attacks, including the attempted bombing of an airliner from Detroit to Amsterdam.  So it is a bit unclear why the government wouldn't just concede the issue.

After Judge Forrest found that the "substantial support" provision violated the First Amendment, she issued what amounted to a controversial injunction (controversial among experts in civil procedure and fed courts).  Instead of limiting the injunction to the parties to the case and preventing the U.S. government from applying it against the plaintiffs, the injunction applied to the government's conduct anywhere against anyone.  Whether a district court judge has the equitable power to do this is very questionable, as my colleague Mike Dorf explained, and at least one consequence is that the government was effectively forced to appeal the case to the Second Circuit, rather than simply let the case die because it had no interest in ever detaining the journalists who brought the case.

Now to the second problem with the concept of support.

Last week, a three-judge panel of the D.C. Circuit Court of Appeals, including some rather conservative judges, vacated Salim Hamdan's convicted for providing material support to al-Qaeda.  As you will recall, Hamdan's case went to the Supreme Court under the previous incarnation of the military commission system, and Justice Stevens wrote a majority opinion concluding that Hamdan's commission violated Common Article 3 of the Geneva Convention.  Under a reformed commission system, Hamdan was acquitted of conspiracy but convicted of providing material support, sentenced to time served, and promptly released to Yemen.

The D.C. Circuit has now thrown out the material support charge as well, concluding that "providing material support to terrorism" is not a recognizable offense under the international law of war and therefore not subject to trial by military commission for acts prior to 2006 (when Congress amended the statute creating the commissions).  The government all but conceded that providing material support was not a violation of the international law of war, but made the hokey argument that it violated the "U.S. common law of war" -- the unwritten body of law emerging from previous prosecutions before military commissions in the United States, mostly during the Civil War.  This is a strange argument, because the idea that each country has its own municipal law of war runs counter to the very reciprocal nature of the law of war as an international body of law that binds all parties to an armed conflict.  If each side has its own international law of war, that reciprocity vanishes.  In any event, the court rejected this argument and insisted that the correct sphere of reference was the international law of war, which has no concept of material support.

What's ironic about all of this is that the concept of support -- whether substantial or material -- just isn't that necessary, though for some reason the government continues to think that it is.  Within the context of detention, the courts have already applied such a wide interpretation of "membership" that almost all of the detainees could be detained by virtue of their membership in al-Qaeda or an al-Qaeda affiliate.  The D.C. Circuit has already embraced a "functional" definition of membership, which I've written about here, which includes anyone part of the al-Qaeda hierarchy or command structure -- i.e. any one who either gives or takes orders within the organization.  Detention on that basis alone would solve the problem in my view.  It renders detention based on substantial support superfluous.

As for criminal convictions, there are numerous other criminal provisions that could replace the crime of providing material support.  Of course, there's the concept of conspiracy, though that crime's days might be numbered before the D.C. Circuit as well, because several cases down the line (including Bahlul) raise this issue.  But even if the government does not rely on conspiracy, the government could rely on complicity and charge the defendants with aiding and abetting terrorist activity.  Perhaps the concern here by government officials is that complicity is a mode of liability, and not an inchoate offense, so it requires a completed offense before a prosecution is permitted.  But there are other inchoate offenses that could be used to get around this problem, including the doctrine of attempt.

Any by the way, even membership in a criminal organization is still a crime under U.S. criminal law (18 USC § 2385) and even has a precedent at Nuremberg (see Altstötter), making it a tantalizing possibility (though it raises other problems). Incidentally, people often assume that crimes of membership would violate the Constitution, but the leading Supreme Court cases on the subject never declared them unconstitutional, they simply held that convictions must be limited to cases of "active" membership with intent.  Or, if one is concerned with membership as a criminal category because it is based on status rather than conduct, the doctrine of attempt certainly solves that problem.

The whole obsession with the concept of support is ill-considered and ought to be radically re-thought.

Sunday, October 14, 2012

This Just In: Humanity Itself Wins Nobel Peace Prize

Or maybe they could have given it to the concept of peace.  That's arguably even more important to the values of the Nobel than the EU.  Or maybe to the concept of life (because death is bad, isn't it?).  OK, maybe the headline is a bit unfair.  

On the one hand, I can completely understand the rationale behind the Nobel Committee's decision to award the Nobel Prize for Peace to the European Union.  It is certainly indisputable that during the first half of the 20th Century -- not long ago -- the continent of Europe was home to the worst atrocities on the globe.  Its violence gave birth to Nuremberg and the very field in which I work, international criminal law.  Now, as the Committee said, war between France and Germany is unthinkable.  In fact, France and Germany are now closer to each other (diplomatically) than they are to the United States, which is increasingly marginalized because of how it pursues its armed conflict with al-Qaeda.  

This remarkable transformation is cause for celebration and certainly deserving of a Nobel.  The question is who is responsible for this development, and whether an organization itself -- the EU -- is the best recipient.  Bill Schabas argues on his blog that the Council of Europe was more responsible for peace on the continent, though nobody knows much about the Council of Europe (except lawyers).  Others complained that the award did not go to an individual.  And in terms of organizations, the EU is about as impersonal as it can get.  Who will accept the award?  Will all of Europe attend the ceremony?  The cooks at the banquet better start cooking now.  And what would they serve?  This brings to mind Gen. Charles de Gaulle's famous quip, “How can you govern a country which has 246 varieties of cheese?” 

It seems to me that the decision was less about which organization deserved the award and more about which organization would receive the most benefit from the Nobel, a similar rationale that animated the decision to give the award to Obama in 2009.  The path to political peace in Europe was already well under way before the EU was created.  And the EU is an economic union anyway, not really a political union.  Of course, some will argue that economic integration in Europe created the very peace and stability that we enjoy on that continent today.  But the opposite sounds equally plausible to me: economic integration was only possible because of a pre-existing diplomatic structure of peace and disarmament.  No country engages in substantial trade with a country they are fighting in a war.  

Clearly, the committee hopes that giving the Nobel to the EU will fortify the union at a time when it faces a crossroads.  The euro-crisis, resentment in Germany over their bailout of Greece, and resentment in Greece over externally imposed austerity measures have all conspired to worsen the European debt crisis and shake global confidence in the future of a unified Europe.  The committee wanted to insert itself into that debate -- an idea that is very controversial in Norway since there is substantial opposition to the EU among Norwegians who have voted twice against joining the union.

Monday, October 1, 2012

Lohengrin Returns!

The Supreme Court term opens today (Monday) with the re-argument of the Kiobel case, which will help determine the scope of the Alien Tort Statute (ATS), which allows non-Americans to sue in US courts for violations of international law.   When Kiobel first came before the Supreme Court, the case was briefed and argued as case about corporate aiding and abetting, which is how the Second Circuit Court of Appeals had resolved the case.  Sitting en banc, the Second Circuit held that corporations could not be sued under the ATS for aiding and abetting human rights abuses because corporations are not subjects of international law.  But when the appeal was first heard by the Supreme Court last year, the justices showed little interest in discussing corporate liability, and instead wanted to know why U.S. courts should have jurisdiction over human rights lawsuits, filed by non-citizens, that have no discernible connection to the United States.  The lawyers were somewhat blindsided by this development, and after the justices' conference, the case was calendared for re-briefing and re-argument this term.

So here we are.  As my colleague Mike Dorf notes in an excellent post this morning, the ATS was referred to by Judge Friendly as a "judicial Lohengrin" because "no one seems to know whence it came."  Although the ATS was included in the famous Judiciary Act of 1789 which created the lower federal courts, the legislative rationale for the provision remains mysterious and there is little legislative history that might shed light on the question. 

This makes the ATS a "Lohengrin" because Lohengrin is the title character from a Richard Wagner opera, itself based on a famous story that has appeared in many different versions throughout German literature.  In the opera, Lohengrin's origins are a complete mystery until the end of the story, when his provenance is revealed (in fact his father is Parsifal, on which another Wagner opera is based).  The origins of the ATS were just as mysterious -- one can only hope that the Supreme Court's case will have better luck unearthing its rationale.

In my opinion, the Lohengrin metaphor (which has been repeated by many academics) extends far deeper than most people realize and might actually shed some light on how the Supreme Court is going to approach the issue.  Let me explain why.

One day, Elsa is accused by her guardian, Count Telramund, of murdering her own brother, Gottfried, who is the rightful heir to the throne of the kingdom and has gone missing.  

Elsa requests a trial by combat (an interesting example of Jim Whitman's fascinating new book called The Verdict of Battle).  Her guilt or innocence will be determined by a duel, and Count Telramund asks who she has selected to fight on her behalf.  She responds that she had a dream that she would be saved by a knight, who in fact appears before her, and agrees to fight Count Telramund on her behalf on condition that she not ask about his identity or origin.

The knight defeats Count Telramund in the duel, but does not kill him.  So Elsa is vindicated and declared innocent.  She falls in love with the knight and he proposes marriage, which she accepts.

Meanwhile, Count Telramund schemes to take over the kingdom, and also schemes with his wife to find a way to get Elsa to ask the knight for his identity and origin, knowing that this will destroy the marriage.  Count Telramund and his wife sow seeds of doubt in Elsa's mind in order to trick her to ask the knight the forbidden questions.

Elsa finally does ask him.  Meanwhile Count Telramund's coup attempt has finally been set in motion, and when his troops storm the castle, Elsa throws a sword to the knight, who uses it to kill Count Telramund and stop the coup.  The knight reports to the king that he has stopped the coup attempt, but he must now return to his homeland, the temple of the Holy Grail, because he has revealed his identity as Lohengrin.

But before he departs, Lohengrin prays, bringing back Elsa's brother, Gottfried.  Gottfried was never dead at all.  He had been turned into a swan by Count Telramund's wife who practices witchcraft.  Upon seeing Gottfried being transformed back from being a swan, Telramund's wife dies.  And Elsa, heartbroken over Lohengrin's departure, dies as well. 

Now here's the moral that I take from this story, which I think is very relevant to the judicial function of the ATS.  Lohengrin is an outsider that comes to vindicate Elsa and bring her justice.  And this he does remarkably well: he wins her battle/trial and she is declared innocent of her brother's murder.  Not only that, but Lohengrin also completes the task by bringing her brother back to life, and saves the kingdom from Count Telramund's treachery. 

However, this judicial intervention, by an outsider, comes with many costs, and Elsa ends up heartbroken and dead when she is unwilling or unable to live up to the conditions.  And Lohengrin must sacrifice much too.  It isn't easy being the far-away vindicator of a kingdom's disputes.

This is precisely what the ATS is all about.  The Statue provides, at least in its post-Filartiga instantiation, a forum in the US to settle disputes and vindicate the human rights of litigants in distant lands.  However, when the US exercises this type of universal jurisdiction, it comes with great costs.

If I were a clerk working for one of the conservative justices seeking to trim back on the alleged excesses of ATS litigation, here's how I would pitch the argument.  Back in Sosa v. Alvarez-Machain, in 2004, the Supreme Court invoked Blackstone for the proposition that the ATS was designed to offer a domestic remedy for international violations because doing so was sometimes necessary to stop an international crisis from erupting.  However, ATS cases have gotten out of hand, and US courts are now intervening in cases all around the world, potentially irking foreign governments and courts, and in the process creating the very rifts that the ATS was designed to avoid.  In order to vindicate the original Blackstonian rationale for the ATS as expressed in Sosa v. Alvarez-Machain, we need to limit ATS jurisdiction to cases that have at least some connection to US territory.  Or so I think the conservative justices will argue.  (I am not endorsing this view, just explaining it.)

On this theory, although we might be tempted to use the federal judiciary, like Lohengrin the outsider, to vindicate foreign rights violations, such interventions are messy and result in tremendous heartache and death.