Why the Laws of War? a Separation-of-powers Argument for Striking the Military Commissions Act
| Jurisdiction | United States,Federal |
| Publication year | 2014 |
| Citation | Vol. 17 No. 1 |
1. Military necessity
2. In the theatre of war
3. For violations of the law of war
a. Not inchoate, non-universal crimes
b. Not federal crimes
1. The Executive branch
2. The Legislative branch
3. The Judicial branch
1. To prevent abuse by the political branches
2. To preserve Article III authority
'''In one day . . . has the fair character of this nation been blasted! That character for justice and mercy in which we had thought ourselves pre-eminent, and of which we had so proudly boasted to the other nations of the earth, is now prostrated as low as theirs.'"(fn1)
From former President Bush's initial military order (M.O.)(fn2) establishing the Guantanamo Bay military commissions to the increasingly heated forum battle between the Obama Administration and Congress,(fn3) the use of commissions has proven problematic politically and diplomatically, and, some argue, perhaps undermined the Administration's ultimate detention purposes.(fn4) But the Supreme Court has never directly addressed Congress's authority to expand jurisdiction over federal crimes not recognized by the international law of war,(fn5) as Congress purported to do under the 2006 and 2009 Military Commissions Act ("MCA").(fn6)
The MCA, which Congress stipulated did not codify "new" war crimes, expanded military commission jurisdiction over the crimes of conspiracy and material support of terrorism.(fn7) But these stand-alone inchoate offenses are not violations of the international law of war, as confirmed by Supreme Court precedent, past and present scholarship, and the international community's understanding.(fn8) Left unaddressed, this extension dramatically changes the scope of the military commissions(fn9) and threatens the delicate tripartite balance entrenched in the U.S. Constitution.
The D.C. Circuit strayed from its characteristically deferential trend with its first reversal of a military commission conviction,
But when Hamdan challenged Congress's precursor authority to make conspiracy triable by military commission, the D.C. Circuit provided: "We do not decide that antecedent question."(fn13) This preserved an unprecedented expansion of the traditional subject matter jurisdiction exercised by military commissions. Congress's now-seemingly idiosyncratic authority to create new war crimes and subject them to military commission will again be put to the test: in April 2013, the D.C. Circuit granted the government's petition for an unusual en banc rehearing[14] of
This Note attempts to constitutionally situate Congress's expansion of military commission jurisdiction over non-international-law crimes in the 2006 and 2009 MCA. In particular, this Note answers whether there is something about the law of war itself that provides the constitutional ceiling by which Congress can require the adjudication of non-law-of-war offenses before a military commission. In the end, I argue that the law of war has always served as a structural constraint on the political branches' authority to create military commissions per separation of powers and Article III doctrine. Whether or not the forum battle continues, it is clear that at least for stand-alone inchoate offenses, trial by military commission is improper.
Part I of this Note sets the stage for the preserved "antecedent question," discussed above. In Part II, I explain not only whether the commissions' jurisdiction has been limited to the law of war, but also why such limits are functionally necessary. In so doing, I also discuss why conspiracy and material support of terrorism have no place before military commissions. Since 2006, relatively little scholarship has focused on why, given this stipulation, military commissions must be limited to adjudicating violations of the laws of war.(fn16) This Note attempts to fill that gap.
Finally, in Part III, I discuss the oft-neglected limitation to commissions' offense jurisdiction: the Constitution and Article III. The expansion of military jurisdiction over federal crimes properly within Article III's purview offends separation of powers. Further, the judiciary has always looked to the law of war to determine whether Congress has unconstitutionally established a military commission; it is its necessary and proper constitutional role to circumscribe such abuses.
Before discussing military commissions' subject matter jurisdiction under the MCA, two points regarding terminology and approach are relevant. First, this Note does not argue that international law must serve as an external limit on Congress's law-making authority. That the federal courts have not used international law as an authoritative Constitutional limit is evident, and though its application in the terrorism context would be prudent, the courts have not directly addressed this question.(fn17) I do argue, however, that past practice, precedent, and pragmatic considerations indicate that the international law of war does give definition to such limits domestically,(fn18) which the Constitution articulates in Article I,(fn19) and also that constitutional separation of powers requires that such limits remain.(fn20)
Second, it is also true that Congress possesses unlimited authority to define new federal crimes under Title 18 of the U.S. Code within its ordinary Article I powers. This is not disputed. But, I contend, Congress does not similarly possess unlimited authority to make those crimes triable by military commission. This is so notwithstanding its enumerated powers to "Define and punish . . . offenses against the law of nations."(fn21) Rather, while Congress must authorize the commission and initiate its jurisdiction, there exists an additional constitutional restraint that must not be neglected, and which lies at the root of the jurisdiction question.
In one of the few instances where the Supreme Court exercised the writ of certiorari over a case involving Guantanamo detainees' rights, it ruled in favor of Salim Ahmed Hamdan-Osama bin Laden's bodyguard and personal driver.(fn22) After being detained for two years without trial, Hamdan was charged with two claims of conspiracy "to commit . . . offenses triable by military commission."(fn23) After two more years, the Supreme Court held that the commission lacked power to proceed regardless of Hamdan's substantive offense: the procedural rules established by the military commission contravened statutory limits.(fn24) This was the first time the Court rejected elements of the Bush Administration's military commissions; it was a momentous decision.
The less cited-and equally powerful-plurality opinion in
Justice Stevens departed from what would be the logical conclusion: that Hamdan's military commission lacked jurisdiction because conspiracy is not a violation of the law of war. Instead, he couched the issue in whether Congress had "positively identified 'conspiracy' as a war crime" in the relevant statute.(fn28) Where Congress has not so codified, Justice Stevens explained, to establish jurisdiction over the offense "precedent must be...
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