2/19 Motions Session #5: Things Limburg, Part One

It's boat time.  Recall that Al-Nashiri is charged with playing a role in the attack on the M/V Limburg, a French-flagged oil tanker, in Yemen; the episode resulted in the death of a Bulgarian national, among other things.

The vessel is the subject of our next two motions.  In the first one, argues Al-Nashiri attorney CDR Brian Mizer, the government asks you to repeat Judge Allred’s error from the military commission in Hamdan.  And the parallels between the material support charge at issue in that case, and the charge attacked here, in motion AE169---hijacking and hazarding a vessel---are striking.  Neither offense violates the international law of war. as both must in order to be tried by military commission. The hazarding charge therefore should be dismissed.

Judge Pohl: you’re relying on Hamdan II?  Mizer: Yep. If you want to write your opinion, your honor, you could simply remove “material support” and add in “hazarding a vessel,” and arrive at the correct legal interpretation.   No international tribunals criminalize the offense, argues Mizer.  The lawyer then proceeds to knock down a number of prosecution claims, among them that a new body of law---the American “common law of war”---makes hazarding a vessel a commission-triable crime. Much as above, Hamdan II disposes of that claim, as it does all of the prosecution’s theories, by making ringingly clear that---so far as commissions are concerned---only the international law of war counts.  And yet there is no basis for concluding that hazarding a vessel is an international law war crime.  Of course when asked, Mizer agrees that attacking civilian objects is a war crime, and the prosecution has put forth a charge on that basis, regarding the Limburg.  But that's just the thing: for Mizer, there remains a significant factual dispute about the Limburg's status at the time of the crime. The government characterizes it as a “civilian” object, but the defense disagrees. Mizer adds that the prosecution can’t jack up penalties against Al-Nashiri in any event, simply by cloaking them in various legal terms.  Judge Pohl: suppose the D.C. Circuit in Al-Bahlul rules for the government, and endorses its recently-minted “domestic common law of war” theory.  That wouldn’t change things, answers Mizer: the government’s proof as to the domestic status of the hazarding is scant, and consists of a single offense in 1894.  

The baton passes to the prosecutor Army Maj. Evan Seamone.  International law is on his side, he insists.  Consistent with Hamdan II, the hazarding offense is based upon norms grounded in international law---protecting civilians, and the principle of necessity, among others.  The defense concedes that attacking civilian objects is a legitimate offense, he adds; well, hazarding a vessel “embraces” that former offense.  This puzzles the judge, who perceives the sort of double-dipping that Mizer complained about.  Seamone struggles to explain, arguing that one can have an attack on a civilian object, without endangering that object’s safe navigation, in the case of a boat and its crew.  It’s sort of like the relationship of general offenses (like assault) to more specific, severe ones (striking a superior officer), he explains. The prosecutor then proceeds to distinguish Hamdan II, because that case related to inchoate liability; the hazarding charge here, though, is completed in nature.  (When asked, Seamone seems to back away from the “domestic common law of war” argument advanced on appeal these days by the United States.) He ticks off some more distinctions, one being this: Hamdan II looked in vain for a treaty mentioning material support for terrorism; but here, there are treaties regarding attacks on civilian sea vessels and piracy, like the Convention on Safe Navigation, or "SUA."" Considering this and other evidence, Seamone argues, the norm here appears quite firmly grounded in international law.  Seamone also tells the court that some folks have been prosecuted for hazarding offenses in a few instances.  The prosecutor returns to counsel table.

The defense, Mizer says, doesn’t dispute that the SUA treaty has been implemented in domestic law of some states.  Fine; it has.  But its status is beside the point, because we’re dealing with the international law of armed conflict here, not just international law writ large.  And there’s no, nada, zip, nothing in that body of law proscribing the hazarding of a vessel.  But of course, in order pass muster under Hamdan II, the prosecution must show that the international law of armed conflict made this a war crime at the time of Al-Nashiri's alleged conduct.  It can't do that.  Mizer renews his dismissal request.

Seamone adds in a word about secondary authority, then he’s done, too---and with him, our first of two chats about boats and international law.