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.

*B.A., Cornell University; J.D., Villanova University School of Law. The author thanks Benjamin Wittes, Senior Fellow in Governance Studies at the Brookings Institution and co-director of the Harvard Law School-Brookings Project on Law and Security, for posting an earlier version of this Article on http://www.lawfareblog.com/, which he co-founded along with law professors Robert M. Chesney and Jack L. Goldsmith. The author also thanks the Harvard National Security Journal in general and Mary Ostberg, Mat Trachok, Brian Itami, and Vanessa Strobbe in particular.