Amici Briefs in Bahlul by International Law Scholars and First Amendment Scholars
Two new amicus briefs have been filed in Bahlul v. United States in the D.C. Circuit Court recently. The first is a brief on behalf of international law professors (including our own Steve Vladeck). Its main arguments are that conspiracy, solicitation, and material support for terrorism are not offenses against the law of war. Read it here.
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Two new amicus briefs have been filed in Bahlul v. United States in the D.C. Circuit Court recently. The first is a brief on behalf of international law professors (including our own Steve Vladeck). Its main arguments are that conspiracy, solicitation, and material support for terrorism are not offenses against the law of war. Read it here. The summary of the argument reads as follows:
Military commissions may only try offenses against the law of war. Whether conspiracy, solicitation, and material support for terrorism are offenses against the law of war is a question of international law. The primary sources of international law, including customary international law, treaties and proceedings from various international criminal tribunals, demonstrate that conspiracy, solicitation, and material support for terrorism are not, and have never been, violations of the law of war. Hence, this judgment must be set aside and any further proceedings must take place in the proper forum. The crime of conspiracy charged against Mr. al Bahlul is unique to Anglo-American law. It is absent from all major law of war treaties, including the Geneva and Hague Conventions, and it has been rejected in the proceedings of international criminal tribunals up to the point of the Guantánamo Military Commissions. International humanitarian law has rejected the crime of conspiracy for substantial reasons. The charge is overbroad, it is difficult to prove, and it can serve to assign criminal liability to persons who are not responsible for committing war crimes. Further, the realities of armed conflict cannot practically permit the application of the crime of conspiracy to participants in armed conflict. Likewise, the inchoate crime of solicitation is also not an offense against the law of war. It does not appear in any law of war treaty, and it has never been tried in a military commission in the United States or elsewhere. The crime of material support for terrorism is a unique domestic offense beyond the scope of the law of war. The international community has determined that material support for terrorism should be criminalized through domestic channels and United States Executive branch officials have acknowledged that material support for terrorism is not an offense against the law of war.The other brief filed in Bahlul is on behalf of first amendment scholars and historians, and the Montana Pardon Project. The summary of its argument is excerpted here:
Americans’ and, in particular, the Framers’ understanding of freedomof speech and of press extended beyond America’s shores. EducatedAmericans were attuned to the Republic of Letters – the free flow ofpolitical and other information among citizens of different countries. Voltaire and Rousseau were not discovered by visitors to France. Theycorresponded directly with their counterparts in England and in the Britishcolonies. Their ideas and the ideas of their correspondents were oftenantithetical to the ruling classes. Some were considered treasonous andwere suppressed by British authorities. The First Amendment to the United States Constitution wasproposed, passed by Congress, and ratified by the States in this historicalcontext – a context of the need to protect the international flow ofinternational ideas. This principle extended to ideas that were a threat tothe existing order. The ratification of the First Amendment and the States’ adoption oftheir own guarantees of free speech and free press could not ensure that thegovernment would always adhere to those principles. Assaults upon thoseprinciples began as early as 1794 and continue today. Each time guaranteesof free speech and free press came under attack, the United States was atwar or was anticipating war. With two exceptions, in each instance theUnited States acted after the fact by means of pardons and remissions tocorrect prosecutions that were pursued and convictions obtained becauseof fear, anger, and prejudice. The two exceptions, the United States’ and our allies’ treatment of Nazi propagandists Leni Riefenstahl and JuliusStreicher, illustrate the application of free speech and free press rights atNuremberg. The Allies’ decision not to prosecute Riefenstahl and theInternational Military Tribunal’s decisi0n to limit the scope of theprosecution and conviction of Streicher preserved the Republic of Letters. Incitement was the key difference between Riefenstahl and Streicher. Incitement with knowledge distinguished the counts for which Streicherwas not convicted from the single count for which he was convicted,sentenced, and executed. The Nuremberg Tribunal did not recognizespeech without knowing incitement as a war crime or as a crime againsthumanity. Mr. Ali al Bahlul’s work pales in comparison to Streicher’s poisonous venom. It fails to approach Riefenstahl’s skill at inspiration and herglorification of Aryanism and the National Sozialistischen Deutschen Arbeiterpartei.Bahlul's initial brief is available here. The government's brief hasn't yet been filed, and oral argument hasn't been scheduled yet either.
Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT.
Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.
