CMCR Briefs by al-Bahlul and Hamdan (on Joint Criminal Enterprise and Aiding the Enemy), and an Unexpected Comment on Detention Based on Non-Member Support

On February 24th, as directed by the en banc Court of Military Commission Review, the appellants in al Bahlul and Hamdan filed briefs addressing two questions:

I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006). II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation? ee Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).

The brief in al-Bahlul is available here. The brief in Hamdan is here. The government's response is due on March 11th, and oral argument takes place at 11:30 am on Thursday March 17th at the Court of Appeals for the Federal Circuit (hopefully we'll have someone there for a post-game recap). Below the jump, I reprint the "short answer" summaries contained in al-Bahlul's brief regarding each of these questions (I don't also provide excerpts from Hamdan's, as the argument there appear to track al-Bahlul's). Before getting to that, though, I want to highlight the concluding paragraph in al-Bahlul's brief, which will be of interest to those following the distinct debate as to whether military detention for the duration of hostilities can be predicated on the provision of support to an AUMF-covered group by a non-member of the group. The paragraph is making the point that one must owe allegiance to a state in order for the provision of suppport to that state's enemies to count as a criminal offense (under the rubric of aiding-the-enemy); in making that point, though, the authors explicitly state that such conduct can be a detained for the duration of hostilies on a non-criminal basis:

But the law of war imposes no duty of non-intercourse on individuals with no duty of allegiance. As the Supreme Court held a century and half ago, “A non-resident alien need not expose himself or his property to the dangers of a foreign war. . . . But so soon as he steps outside of actual neutrality, and adds materially to the warlike strength of one belligerent, he makes himself correspondingly the enemy of the other.” Young, 97 U.S. at 63. By doing so, he exposes himself to the hazards of war; to being targeted or detained for its duration. But at any time relevant to the charges in this case, such an individual would have committed “no crime against the laws of the United States or the laws of nations. . . .” Id. at 66. [underline added by me]

That underlined sentence of course is not an argument you are likely to see a detainee making in the habeas litigation, where the proposition that detention may be based on support remains hotly contested. I was not familiar with Young, and so went to the full opinion to see whether actually says that a person in this situation may be targeted or detained. It does not do so, not quite. It certainly describes this situation (i.e., a non-resident alien providing support to one side in a war) as one in which the alien becomes an enemy, just as the citizenry of the enemy collectively become enemies with the onset of war. But that's not the same thing as saying that everyone in this category is both targetable and detainable, or so it seems to me; and even if this was in fact the import of the concept of public enemies as understood in customary international law in the mid-19th century, I would think this view superseded by the subsequent development of th principle of distinction. An interesting issue, at any rate; I'd be happy to hear from any readers with thoughts on these nuances. Now, back to the CMCR proceedings. Read on past the jump for synoposes of the arguments in al-Bahlul's brief: Al-Bahlul's argument as to Question I ("joint criminal enterprise")

Joint criminal enterprise is a routine way to prove individual liability when groups commit war crimes on a massive scale. In evaluating how the doctrine impacts the charges in this case, it is important to distinguish between what the doctrine is and what it is not. A joint criminal enterprise is a theory of co-perpetration that establishes a defendant’s liability for a specifically charged and fully proven criminal act. It is not a means by which to establish inchoate liability. And that distinction highlights the deficiencies of the charges in this case in at least three important respects. First, the development of the doctrine since World War II and its importance in war crimes prosecutions is largely a consequence of the fact that inchoate liability is inapplicable to war crimes. In case after case, military commissions and federal courts have held that the joining in or providing support for a joint criminal enterprise is not a crime in itself. Second, for joint criminal enterprise to be relevant here, the offenses charged would have to have established Mr. al Bahlul’s co-perpetration of a specific and completed war crime. At bottom, it is the same elements test used in finding lesser included offenses. A law of war offense must be equal to or a lesser included offense of the crimes charged. All joint criminal enterprise does is add elements of concerted action to the elements of the underlying offense. Based on the record in this case, the elements of any completed offenses were neither alleged nor found. The presentation of the evidence, the instructions from the military judge and the findings of the members all rested on theories of inchoate liability that lacked some or all of the elements of the underlying crimes. Nothing in the record would have put Mr. al Bahlul on notice that he was being charged with specific war crimes on the basis of his joining in a criminal enterprise or otherwise. To the contrary, the government struck language from the Charge Sheet that alleged Mr. al Bahlul joined a “criminal enterprise.” And it did this on its own motion. Third, the same elements test governs whether the Military Commissions Act constituted an ex post facto law. If Congress sought to retroactively eliminate elements of war crimes, then the law would be an unambiguous breach of the Ex Post Facto clause. Here, no crimes even comparable to the charges against Mr. al Bahlul existed under the law of war a decade ago. By definition, they are inchoate crimes that eliminate elements of the underlying offenses. Regardless of whether Congress could have prospectively defined new war crimes in 2006, these sections of the Military Commissions Act would be unconstitutional as applied to Mr. al Bahlul. While the scope of Congress’ power to create war crimes and the prohibition of ex post facto laws pose difficult constitutional questions, they can be readily avoided in this case. Under the law prevailing a decade ago, the government would have to have charged completed crimes and proven that Mr. al Bahlul committed those crimes either personally or via a joint criminal enterprise. The Military Commissions Act contains nothing that suggests its enumerated offenses were intended to apply retroactively regardless of whether they would raise doubts about the Ex Post Facto clause. When Congress wanted other parts of the Act to apply retroactively, it gave a clear statement to that effect. It made no clear statement for the offenses triable by military commission and a number of sections of the Act say precisely the opposite. This Court should therefore rely on fundamental rules of constitutional avoidance and presumptions against retroactivity to vacate the judgment below for defects in subject matter jurisdiction.

Al-Bahlul's argument as to Question II ("aiding the enemy"):

Appellant has conducted a thorough review of military commission records from the Civil War and the Philippine Insurrection, including all of the existing records cited in Hamdan, in WINTHROP and by the government in its merits briefing here. In every case, as well as cases arising in the twentieth century, the defendants owed a duty of loyalty to the United States. None involved a foreigner who had not undertaken some allegiance to the government by, at a minimum, temporary residence in an area under its authority. This consistency derives from the fact that the prohibition on aiding the enemy is a component of the law of non-intercourse. As Winthrop describes it, the law of non-intercourse is a term of art that derives from the fact that “[a]ll the inhabitants of the belligerent nations or districts become, upon the declaration or initiation of a foreign war, or of a civil war, (such as was the late war of the rebellion,) the enemies both of the adverse government and of each other, and all intercourse between them is terminated and interdicted.” COL William WINTHROP, MILITARY LAW AND PRECEDENTS 776-77 (2d Ed. 1920). What makes aiding the enemy criminal is not the support given, but the breach of fidelity it entails. As Winthrop described them, aiding the enemy offenses “are treasonable in their nature.” WINTHROP at 629. The treatises he cites call offenses that we would now construe as material support as “closely allied to treason.” JOHN O’BRIEN, A TREATISE ON AMERICAN MILITARY LAWS, AND THE PRACTICE OF COURTS-MARTIAL 146 (Philadelphia 1846) (Encl. A-7); see also E. SAMUEL, A HISTORICAL ACCOUNT OF THE BRITISH ARMY, AND OF THE LAW MILITARY… 583 (London 1816) (Encl. A-9) (referring to the aiding the enemy offenses as “so many acts of treason”). And like treason, criminal penalties for giving aid to the enemy “can of course apply only to those owing allegiance, either permanently or temporarily, (as in the case of foreign occupied conquered provinces) to the United States.” O’BRIEN at 148. A non-resident alien owes no duty of fidelity to the United States. See La Plante v. United States, 6 Ct. Cl. 311 (1870) (rule of non-intercourse does not apply to non-resident aliens). When a non-resident alien supports hostilities against the United States, he may be properly targeted as an enemy “by reason of his hostile acts.” Young v. United States, 97 U.S. 39, 66 (1877). But as the Supreme Court has held, “He was no offender, in a criminal sense. He had committed no crime against the laws of the United States or the laws of nations . . . .” Id.; see also O’BRIEN at 148 (unlike spying, aiding the enemy offenses “could never be supposed to apply to an alien enemy.”).

Hamdan's argument as to Question I ("joint criminal enterprise"): Hamdan's argument as to Question II ("aiding the enemy"):