Defining, Punishing, and Membership in the Community of Nations: Material Support and Conspiracy Charges in Military Commissions

Abstract

Military commissions have inspired fresh debate in one case recently decided by the D.C. Circuit – United States v. Hamdan – and another case still pending, United States v. al-Bahlul. In Hamdan, which concerned Osama bin Laden's driver, and al-Bahlul, which involved bin Laden's personal propagandist, the government has argued that the "U.S. common law of war" supports convictions for material support of terrorism and conspiracy as a stand-alone offense. While the Supreme Court has upheld such prosecutions in civilian courts, conduct of this type has rarely been considered a violation of international law. The government's theory therefore clashes with the Constitution's Define and Punish Clause, which authorizes tribunals only for conduct that violates the "law of nations." Recognizing this tension, the D.C. Circuit vacated Hamdan's conviction.

The Define and Punish Clause embodies the Framers' view that membership in the community of nations was a crucial step in the new Republic's emergence. Disdain of international law doctrines such as diplomatic immunity was a signature vice of the Articles of Confederation period that the Framers sought to remedy. The government's theory of a distinctive U.S. law of war turns the Framers' model on its head. Moreover, U.S. practice has generally limited military commissions to prosecution of participation in unlawful acts of violence, substantial roles in violent groups, or breach of a duty of loyalty to the U.S. In Hamdan's case, at least, none of these factors applied.

However, the government's critics overshoot the mark with a rigid account of the law of nations that leaves no breathing room for the Framers' pragmatism. The critics would categorically preclude trial of material support charges, even when those charges, as in the propagandist al-Bahlul's case, echo conduct that international tribunals have tried and punished. The government's critics ignore the Framers' concern with violent nonstate actors who threaten the cooperation that membership entails. To deal with this problem, the Framers built in a zone of deference for Congress's exercise of power under the Define and Punish Clause. Tracking the membership conception, courts should apply a functional test, tailoring charges to preclude the sweeping claims cognizable in ordinary courts. Courts should permit charges that defendants aided specific acts of unlawful violence or played a substantial role in an entity that engages in such violence. A functional approach would respect international law, while providing the effective recourse against violent nonstate actors that the Framers' vision of membership requires.