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.