Three (Early) Observations on Judge Kavanaugh's Analysis in Hamdan

Raff already shared the news re: this morning's D.C. Circuit decision reversing Salim Hamdan's military commission conviction for providing material support to terrorism (MST), holding that MST wasn't a recognized violation of the laws of war prior to 2006 (when it was codified as part of the Military Commissions Act of 2006), and so the MCA did not in fact authorize Hamdan's trial (insofar as the MCA itself purports to limit its retroactive scope to offenses already recognized as war crimes under the laws of war). What is so remarkable about Judge Kavanaugh's 28-page opinion is just how straightforward (and short!) it is... I'm sure there will be a lot to say about this decision going forward (along with Judge Ginsburg's rather provocative proposal for a reconceptualization of mootness doctrine in criminal cases), but I thought I'd kick off the commentary with three brief observations about Judge Kavanaugh's analysis for the "Hamdan II" majority: 1. Whither Conspiracy (and al-Bahlul)? By far, the most important question today's decision raises is how it will affect other trials at Guantanamo. The short answer is, "it depends." With regard to offenses not recognized as war crimes under international law prior to the 2006 enactment of the MCA, I think it's safe to say that MST was the easiest target. And today's decision should effectively foreclose any subsequent military commission prosecutions of current Guantanamo detainees (all of whom are held based on pre-2006 conduct) for MST. But Hamdan was also charged with (and ultimately acquitted of) conspiracy, which raises a variation on the ex post facto issue at the heart of the D.C. Circuit's reasoning. And that's where the next military commission case, al-Bahlul, comes in--one of the claims al-Bahlul raises in his appeal is that conspiracy was not recognized as a violation of the laws of war when the MCA was enacted, and so, as in Hamdan, the commission could not try him for that offense, either. The military commission and the CMCR disagreed. Admittedly, the arguments for and against conspiracy as a pre-MCA war crime are a bit more involved--and not as easily resolved as they were in Hamdan II. But here's how Judge Kavanaugh framed the inquiry going forward in footnote 10 of his opinion:

[T]he imprecision of customary international law calls for significant caution by U.S. courts before permitting civil or criminal liability premised on violation of such a vague prohibition. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). A general prohibition against violations of “international law” or the “law of nations” or the “law of war” may fail in certain cases to provide the fair notice that is a foundation of the rule of law in the United States. Therefore, as the Supreme Court required in an analogous context in Sosa, and as the plurality suggested in Hamdan, imposing liability on the basis of a violation of “international law” or the “law of nations” or the “law of war” generally must be based on norms firmly grounded in international law.

In other words, Judge Kavanaugh adopted Justice Stevens's reasoning for the plurality in Hamdan I as the law of the D.C. Circuit in Hamdan II. As a result, an individual can only be tried in a military commission under the MCA for conduct that, prior to 2006, was clearly in violation of international law. Applying that standard, the Hamdan II majority easily brushes aside various Civil War-era examples, suggesting that, whatever their implications, they hardly meet such a requirement for a "firmly grounded" norm proscribing MST. If this is the standard that the D.C. Circuit applies in al-Bahlul, then the government will have an uphill battle in convincing that panel that conspiracy satisfies it, especially given the Hamdan I plurality's conclusion that it does not. And if conspiracy is knocked out, as well, that will probably preclude most of the non-9/11 cases going forward--or at least require the government to find more conventional charges. This issue may also have a lot to say about what the Solicitor General does in response to today's decision. Pursuing rehearing en banc would be rather pointless given the composition of the panel--which includes two of the more conservative members of the eight-judge court). And going for cert. would be interesting given that it's not clear that this Administration disagrees with Judge Kavanaugh's conclusion (more on that bel0w). So whether the current Administration goes for cert. may well depend on whether today's decision will also affect other cases that the Office of Military Commissions wants to bring. The more that the answer to that question is yes, the more likely a cert. petition may well become. 2. Footnote 6 and the Prospective Question Part of why the reasoning in Hamdan II is so straightforward is because the majority ducks the hard question, i.e., whether Congress has the power to so provide prospectively--to define as a war crime triable by a military commission an offense not recognized as a violation of international law. Writing only for himself, Judge Kavanaugh explained as follows in footnote 6:

Although material support for terrorism is not yet an international-law war crime, Congress’s war powers under Article I are not defined or constrained by international law. The Declare War Clause and the other Article I war powers clauses do not refer to international law, unlike the Define and Punish Clause. Moreover, Congress has long prohibited war crimes beyond those specified by international law. See 10 U.S.C. § 904 (aiding the enemy); id. § 906 (spying); cf. Quirin, 317 U.S. 1. The U.S. Constitution does not give the international community – either directly, or indirectly through the vehicle of international law – a judicially enforceable veto over Congress’s exercise of its war powers. Put simply, the United States may be a leader in the international community, not just a follower, when Congress authorizes war against a terrorist organization or makes crimes such as material support for terrorism war crimes triable by military commission.

Needless to say, this is a very important issue, and one about which I'm sure we'll have lots to say going forward. Critically, though, Judge Kavanaugh expressly distinguishes the Declare War Clause and "the other Article I war powers clauses" from the Define and Punish Clause, suggesting that the latter may well be bounded by international law--as I've argued elsewhere ad nauseum. Thus, the implication is that Congress may depart from international law in prescribing offenses so long as it's resting on a power other than the Define and Punish Clause. That's an important nuance--and one that has largely been lost on prior courts and commentators alike. Of course, it still raises the question of whether non-Article III military commissions can hear such offenses, but that, too, is a distinct question (and one on which I suspect Judge Kavanaugh and I ultimately differ). Far more importantly for present purposes, neither Chief Judge Sentelle nor Judge Ginsburg joined Judge Kavanaugh's analysis on this point, meaning that all of these questions remain open until (the highly unlikely scenario in which) a case arises that actually raises them, i.e., an individual subjected to trial by military commission for MST and/or conspiracy based upon post-2006 conduct. 3. Who Lost? Finally, although some may view today's decision as a setback for the Obama Administration, I don't think that view is at all fair. Indeed, this Administration has repeatedly expressed concern about MST as an offense triable by a military commission, with David Kris testifying at a July 2009 Senate Armed Services Committee hearing that "there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is NOT a traditional law of war offense, thereby reversing hard-won convictions, and leading to questions about the system's legitimacy." (See also Jeh Johnson's testimony.) To that end, the Administration had tried to have MST deleted from the list of offenses in the 2009 MCA, only to have Congress re-enact the 2006 provision largely unchanged. If today's decision is a loss for anyone, it's a loss for the commission system itself, in which, without any dissent, the trial judge and Court of Military Commission Review held that it was simply beyond question that MST was a recognized violation of the international laws of war. That view received exactly zero votes from a very conservative panel of a court that has not exactly been sympathetic to claims by Guantanamo detainees. It's hard to imagine a stronger rebuke of the quality (or lack thereof) of the legal reasoning employed by the military commission or by the CMCR--and that repudiation may be where today's decision has the greatest long-term ramifications.