Features, Online — May 13, 2012 at 2:50 pm

History, Hamdan, and Happenstance: “Conspiracy by Two or More To Violate the Laws of War by Destroying Life or Property in Aid of the Enemy”

By Haridimos V. Thravalos –

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The U.S. Court of Appeals for the District of Columbia Circuit will soon confront the question of whether, under the Military Commissions Act of 2009, conspiracy to violate the law of war is an offense triable by law-of-war military commission. In June 2006, a plurality of the Supreme Court in Hamdan v. Rumsfeld determined that the Government failed to make a colorable case for the inclusion of conspiracy among those offenses cognizable by law-of-war military commission. The plurality’s reasoning was largely based on its survey of domestic law sources and precedents. That survey, however, was inaccurate and incomplete.

This Article examines and expounds upon the domestic law sources and precedents, spanning from the Civil War to beyond World War II, that inform the issues surrounding the charge of conspiracy to violate the law of war. These sources and precedents are supplemented by the scholarship of highly respected military law historians who continually recognized conspiracy as an offense triable by law-of-war military commission. Crucially, the Hamdan plurality relied on one such scholar for a principle that he did not assert, and this author’s discovery of a critical record-keeping error illuminates the defects in the Hamdan plurality’s rationale.

The Article concludes that a thorough analysis of historical evidence leads to a substantial showing that conspiracy to violate the law of war is, itself, a violation of the law of war that has traditionally and lawfully been tried by law-of-war military commission.

3 Comments

  1. Pingback: Lawfare » Readings: Haridimos Thravalos on Conspiracy and Military Commisions: The Extended Dance Version

  2. Of what import for the analysis is the fact that the Quirin opinion (one on which you rely heavily) was rendered by the Supreme Court after some of the saboteurs had been hung? Cf Louis Fisher’s, Presidential Power and Military Commissions and the serious questions about the Quirin commissions as a whole.

    The distinction between US laws of war and international laws of war has been raised by Vladeck and Heller in other places. My sense of the argument is that because of the US approach to conspiracy in our view of the laws of war, then anyone in the world is on notice that anyone falling in the proper unprivileged belligerent category can be tried for conspiracy against the laws of war whenever they are an enemy of the United States.

    The British example from the Boer War and the US examples are all on own territory or territory under US or British control (Philippines or South Africa or the secessionist part of the United States).

    I note that you have cited to some cases in China for the conspiracy charge also and that seems to be the purest case of a precedent relevant to trying Al-Qaeda types.

    I think the point you are making is that US foreign relations law through the Constitutional strands coming together includes a conspiracy under the laws of war component. You consider that conspiracy also forms part of the international laws of war and others do not.

    All goes to legitimacy of the approach ultimately and that may be in the eyes of the beholder. Seems like this is a further example of the US seeing the laws of war in a way that allows it to get convictions of people who it sees as enemies – if courts are open or if they are not. The Presidential interpretations being a further evidence of comforting the conviction rationale. The MCA 2006 as amended 2009 structure creates the conviction conveyor belt.

    Are judicial norms being respected in this line of cases? I am not so sure.

    Best,
    Ben

  3. Pingback: nationalsecuritylaw forthcoming scholarship « Robert Chesney's National Security Law Listserv Archive

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