*1 sеpa- The court will enter granted. his as Vice be occupation portant duties (Doc. 38-3 rate order. Medical Affairs. President 84). spent 60% that Plaintiff Given duties, administrative performing time
his to find for the Defendant
it is reasonable if occupations, one of his is at least
that Defen- occupation. sole Because
not his occupa- of Plaintiff’s
dant’s determination reasonable, follows, it for was
tion determining addressed when reasons of America UNITED STATES right, was Defendant’s decision whether Plain- that that Defendant’s determination v. perform important duties
tiff couldn’t Ali Hamza Ahmad Suliman occupation was reasonable. of his also AL BAHLUL. Defendant’s determination Because No. CMCR 09-001. does not meet the definition Plaintiff Disability policy, Total contained Military States Court of thus, totally not is reason- is disabled Review. Commission able, arbitrary was its decision not Plaintiff has capricious. Additionally, Sept. any indicating point
failed to evidence of interest the inherent conflict
(caused Defendant was both because
plan party responsi- and the administrator claim) tainted Defen- paying
ble for Accordingly, decision. Defendant’s
dant’s to be summary judgment for is due
motion
granted.
IV. CONCLUSION frame- engaging analytical
After by the Circuit
work laid out Eleventh Supreme modified
Williams Glenn, it is clear that Defendant
Court summary judgment. After
is entitled record,
conducting a de novo review finds that decision
the court Defendant’s wrong, which
deny Plaintiffs claim was not the need
according to Williams obviates However, analysis. further even
for
assuming that Defendant’s decision wrong, Defen-
deny Plaintiffs claim was summary judgment entitled to
dant is still arbitrary decision not
because that Accordingly, Defendant’s capricious. Summary due to Judgment
Motion *11 Brownback, III, JA,
Colonel Peter E. Army U.S. was the commission judge through arraignment, and Colonel *12 Work, University Montana Force, and Criminal Air Gregory, A. U.S. Ronald Renz, by Jeffrey T. assisted trial. Defense Clinic judge for military commission McFarland; for the Dylan lawby student ap- for argued the cause Paradis Michel Scientists, Historians, Political Consti- Major were him on briefs With pellant. H. Paolet- by Law Scholars Sarah tutional Pierce, JA, Army, Cap- U.S. Todd E. ti; Rights Human Committee for the JAGC, McCormick, Navy. U.S. Mary tain Branch of the International the American White, JAGC, U.S. Captain Paust, Edward S. by for Law Association Jordan J. With appellee. for Navy argued the cause of the Chief Defense Counsel the Office F. Mur- Captain John briefs were Masciola, him on Air Force R. U.S. Colonel Peter JAGC, Francis A. Navy and phy, U.S. Thurschwell, Na- and for the and Adam Gilligan. Indians Congress of American tional John H. Dossett. urging reversal of amici curiae
Briefs Robert David Steele were filed for BANC, EN BEFORE THE COURT Community Intelligence in the U.S. others GALLAGHER, SIMS, BRAND, PRICE, for the Na- Livingston; A. by McKenzie PERLAK, ORR,1 Military Appellate Justice, Military Human tional Institute Judges. Watch, I. Vla- Stephen Professor Rights David S. Weissbrodt deck and Professor OPINION PUBLISHED Corn, Hansen, Geoffrey S. M. Victor THE COURT OF McCluer; M. Lindo Michelle PRICE, Judge: P. Project, Clemens Montana Pardon INTRODUCTION.......................................................1155 I. ..............................................1155
II. PROCEDURAL HISTORY FOR REVIEW................................1157 III. BASIS JURISDICTIONAL ON APPEAL...................................................1158 IV. ISSUES of Court’s Review............................................1158 A. Result ...............................................1159 OF FACTS V. STATEMENT Al-Qaeda Plan .................................................1159 A. The Conduct, ..........................1161 Appellant’s Background, and Trial B. REVIEW...............................................1164 VI. STANDARD OF MATTER JURISDICTION...........1164 MILITARY COMMISSION SUBJECT VII. A. Introduction........................................................1164 B. Issue Presented.....................................................1166 The Law...........................................................1167
C. Military Act of 2006.................................1168 1. Commissions Against Authority Congressional Define and Punish Offenses 2. Nations............................................1169 Law of .............................................1173 The Law of Nations 3. ......................................1174 of Armed Conflict 4. Law 30, 2010. joined November Judges the Court on Acting Judge 1. Chief O’Toole Gregory joined the Court on Gregory Judges them- Orr recused Conn, Thompson, Judge on retired March 2011. participation appellant’s case. from selves Hoffman August and Sims Gallagher, Judges Perlak, Hoffman, a. Combatants —Lawful and Unlawful...........................1177 (AUEC) Enemy Alien Unlawful Combatant —Common Element 1.............................................1182 *13 (a) AUEC and the Law Armed Conflict.................1184 (b) Irregular Warfare....................................1184 (c) Army U.S. 1914and 1956Manuals......................1186 (d) Terrorists............................................1188 (e) Conclusion ..........................................1188 (2) Conduct in the Context of and d Associate with an Armed Conflict—Common Element 2....................1188 TERRORISM, MATERIAL PROVIDING SUPPORT FOR EX VIII. POST FACTO, AND INSTRUCTIONAL ERROR...............................1190 Providing Support Material A. for Terrorism —an Offense Under Law of Armed Conflict............................................1191 Charge.....................................................1191 1. The 2. The 2006M.C.A.and 2007M.M.C..................................1192 Support a. Material or Resources...............................1193 b. Terrorism defined...........................................1194 Providing Support 3. Non-U.S. Domestic Material for Terrorism- Type Laws....................................................1198 B. Discussion..........................................................1202 Organizations Military 1. Criminal Tribunal at —International Nuremburg...................................................1203 Nuremburg Military 2. Control Council Tribunals................1205 10— Enterprise........................................1210 3. Joint Criminal Analysis............................................................1214 C. Complicity.........................................................1215 D. E. Aiding Enemy...................................................1216 F. Ex Post Facto......................................................1218 Instructional G. Error.................................................1218 IX. THE CONSPIRACY TO VIOLATE LAW OF WAR ANAS OFFENSE TRIABLE BY MILITARY COMMISSION..............................1220 Conspiracy Charge Specification............................1222 A. —The Conspiracy B. under the 2006M.C.A.and 2007M.M.C.....................1223 Analysis............................................................1223 C. Conspiracy-Type 1. Non-U.S. Laws .................................1227 D. Conclusion.........................................................1230 X. SOLICITATION AS AN TRIABLE BY OFFENSE MILITARY COMMISSION........................................................1231 Charge Specification...........................1231 A. B. Solicitation —The Solicitation under the 2006M.C.A.and 2007M.M.C....................1231 Analysis............................................................1232 C. Solicitation-Type 1. Laws..........................................1235 XI. AMENDMENT FIRST ISSUES..........................................1242 A. Discussion..........................................................1242 Military B. The Commissions Act and the First Amendment..............1245 Chilling C. Potential Effect on U.S. Citizens.............................1250 Military Judge’s D. Commission Instructions ............................1250 E. Conclusion.........................................................1251 XII. 2006 AND BILL M.C.A. OF ATTAINDER.................................1251 Legislative Analysis............................1251 A. Bills of Attainder and Legislatively Legislatively 1. Determines Guilt...................................1252 Inflicts Punishment.................................1252 a. Historical Test..............................................1253 Test.............................................1254
b. Functional Test ...........................................1254 c. Motivational (1) Specificity Identification...............................1255 Trial....................................1256 Lack of Judicial B. Conclusion.........................................................1256 EQUAL .................................................1256 PROTECTION XIII. I, III to OF ERROR V......................1256 OF ASSIGNMENTS
XIV. WAIVER A. The Law...................... *14 Analysis............................................................1258 B. ......................................1258 APPROPRIATENESS XV. SENTENCE Applicable Law.....................................................1259 A. Analysis............................................................1260 B. 1. The and the Offender....................................1260 Offense Closely-Related 2. Cases...........................................1263 XVI. CONCLUSION..........................................................1264 concurring......................................:...........1264
Judge SIMS excep- support for terrorism with 1. terial INTRODUCTION (3) tions; soliciting persons various . and Ali Hamza Ahmad appeal by In this these same offenses in violation of commit Bahlul, we review for the sec- Suliman al 2 950v(b)(28), 950v(b)(25), §§ 2006 M.C.A. Military a conviction under the ond time appel- and 950u.4 The members sentenced 2006, L. No. Act of Pub. 109- Commissions and the conven- lant to confinement for life (Oct. 17, 2006), 366, codified 120 Stat. 2600 authority sentence. ing approved the (2006 M.C.A.) §§ 948a-950w at 10 U.S.C. military trial of relating to the commission II. PROCEDURAL HISTORY a citizen appellant, of Yemen. 11, 2001, September week after the One of mili- military comprised
A
commission
States, Congress
on the United
attacks
appellant
that
tary members determined
of Mili-
the Authorization for Use
passed
combatant,
enemy
an alien unlawful
was
(AUMF). Pub. L.
tary Force resolution
23, 24, 53,
contrary
nn.
to his
see infra
(2001).
(1)
No.
115 Stat.
mate-
pleas
providing
convicted him of:
the President
to “use
AUMF authorized
resources,
him-
including
support
rial
force
necessary
appropriate
all
Qaeda,3 an
terrorist
self to al
international
nations,
he
organizations,
persons
those
engaged
then
in hostilities
organization
authorized,
commit-
planned,
determines
exceptions;
the
States with
with
ted,
attacks.”
Id.
or aided the terrorist
bin Laden and oth-
conspiring
Usama
to,
the Armed Forces
Qaeda
The President ordered
er members and associates of
Qaeda
Al
alia,
murder,
Afghanistan “to subdue
attack civilians
inter
commit
was known
regime
Taliban
quell
of the law
the
objects
and civilian
violation
terrorism,
Rumsfeld,
v.
war,
support
ma-
it.” Hamdi
provide
commit
words,
Hamdan,
excepted the
"Armed
F.Supp.2d
4. The members
v.
2. United States
24,
1247,
(USCMCR
belt, rifle,
WL
June
gre-
explosive
with an
himself
2011).
prevent
capture of
protect and
nades to
Sheet;
Charge
Tr. 916-
bin Laden.”
Usama
spelled
Qaeda”
Qaida”
“al
in some
3.
"Al
quotations.
spelling is correct.
Either
510,
2633,
507,
in abeyance” pending
124 S.Ct.
159 L.Ed.2d
“held
the outcome of
U.S.
(2004).
appeal
filed in
Hamdan.
29, 2006,
appellant
captured
Supreme
In
Paki-
On June
Court
military.
Rumsfeld,
turned over to the
ruled in Hamdan v.
stan and
U.S.
548 U.S.
transported
military
In
he was
to a
126 S.Ct.
On November District On stayed military authority Court commission trial appellant’s charges referred Department until the of complied specifications by military Defense to trial commis- requirements 7, with various of the Court. began May sion. Trial on 2008. Fol- 152, Rumsfeld, F.Supp.2d merits, Hamdan v. lowing during trial on the which (D.D.C.2004). defense, 173-74 The same appellant issues mounted no substantive case, were present appellant’s military and on the findings commission returned 10, 2004, Appointing December Au- guilty charge specification of on each thority 3, 2008, appellant’s directed that case be ap- on November sentenced 13, 2001, Wounded, Military Shipwrecked Order of Nov. "Deten- dition Sick and of tion, Treatment, 12, (Aug. and Trial of Certain Non- Members Armed Forces at Sea of Terrorism,” 1949), 21, 1950, Against Citizens in the War entered into force Oct. for (Nov. 16, 2001). 21, 1956, 2, 3217, F.R. 57833 On March the United States Feb. 6 U.S.T. 2002, 3363, Secretary Military (No. 971); of Defense issued T.I.A.S. 75 U.N.T.S. 85 Ge- 1, (GCIII) Commission Order No. "Procedures for neva Convention Relative to the Treat- 12, by Military 1949), (Aug. Trials Commissions of Certain ment Prisoners War of of 21, 1950, Non-United States Citizens in the War entered into force Oct. for the Unit- 2, Against 1956, 3316, Terrorism.” ed States Feb. 6 U.S.T. T.I.A.S. 3364, (No. 972); 75 U.N.T.S. 135 Geneva Con- (GCI) (GCIV) 6. Geneva Convention the Ameliora- vention Relative to the Protection for of 12, (Aug. tion the Condition the Wounded and Sick Civilian Persons in Time War 12, 1949), 1949), 21, 1950, (Aug. in Armed Forces in the Field entered into force Oct. for 21, 1950, 2, 1956, 3516, entered into force Oct. for the Unit- the United States Feb. 6 U.S.T. 3365, (No. 973). ed States Feb. 6 U.S.T. T.I.A.S. T.I.A.S. 75 U.N.T.S. 287 The (No. 970); par- 75 U.N.T.S. 31 Geneva Con- four Geneva Conventions have 194 state (GCII) vention the Amelioration the Con- ties. M.C.A., and disparate life. June and 2009 that such confinement for On pellant to Equal did not violate the Pro- convening authority approved the treatment ordered the sen- tection Clause of the Constitution.7 findings and sentence and tence executed. III. FOR JURISDICTIONAL BASIS Mili- subsequently passed the Congress REVIEW (2009 Act of 2009
tary Commissions
M.C.A.),
signed
which President Obama
Military
Re-
Court
Commission
Sign-
on
into law. Presidential Remarks
by Congress
view was authorized
Authorization
ing the National Defense
and established
the Secre-
M.C.A.
(Oct.
2009)
Year
Act for Fiscal
tary
pro-
of Defense. The 2006 M.C.A.
Printing
DCPD Number:
Govt.
Office
vides for “automatic referral” for review
The 2009
re-
DCPD200900858.
M.C.A.
by this
“each case in which the
Court8
M.C.A.,
includ-
portions
vised
(as
military
final
of a
commission
decision
ing expansion
scope
of this Court’s
re-
Authority) in-
approved
Convening
”9
view.
finding
‘guilty.’
cludes a
The 2006
jurisdiction
limited our
to act “to
M.C.A.
recently
ap-
decided the first direct
We
sen-
finding
matters of law” and
“[a]
by military
of a conviction
commission
peal
tence of a
commission under this
convened under the 2006 M.C.A. may not
held incorrect on the
chapter
be
Hamdan,
States v.
F.Supp.2d
*16
of
the error
ground of an error
law unless
(USCMCR
June
WL
materially prejudices
rights
the substantial
2011). Hamdan,
In
we concluded that the
950f(d)
§§
of the accused.” 2006 M.C.A.
charged
providing military sup-
conduct of
950a(a).10
port
punishable
for terrorism was
under
950f(a)
M.C.A.,
In
of the 2009
the law of armed conflict from at least
section
designated
as the
February
joined
Congress
when Hamdan
our Court
Military
Qaeda,
existed for
States Court of
Commis-
that a rational basis
Review,
significantly expanded
disparate treatment of aliens in the 2006 sion
substantially
may
ad-
tence of court-martial
not be held incor-
7. These three issues were
Hamdan,
dressed in our Court’s decision in
ground
an error of law unless
rect on the
of
F.Supp.2d
M.C.A. us sufficiency factual record for sentence Appellant assignments raises six of er- appropriateness: First, that his ror that merit discussion. may only findings affirm such
The Court
convictions must be reversed as none
part
guilty,
and the sentence
such
charged
his
offenses constitute war crimes
sentence,
as the
or amount
Court
Second,
by military
triable
commission.
fact
finds correct
law and
and deter-
providing
that his conviction for
material
mines,
record,
on the basis of the entire
be reversed as
support
terrorism must
approved.
considering
should be
charge
violated the Ex Post Facto
record,
may weigh
the Court
the evi- Clause of the U.S. Constitution and the
witnesses,
dence, judge
credibility
erroneously
support”
term “material
was
questions
and determine controverted
military
judge.
defined
commission
fact, recognizing
military
that the
com- Third, that he
convicted on the basis
mission saw and heard the witnesses.
political speech
in violation of the First
expanded authority
This
mirrors Amendment of the
Constitution.
U.S.
that exercised
service Fourth, that the 2006 M.C.A. is an uncon-
Appeals
Courts of Criminal
in review of
Fifth,
Bill
stitutional
of Attainder.
approved
courts-martial
which the
sen
2006 M.C.A. violates
Constitution’s
death,
punitive discharge,
tence includes
aliens,
making
Equal
Protection Clause
more,
year
or confinement for one
an
citizens, subject
by military
but not
to trial
“awesome,
authority
characterized as
Sixth,
commission.
that a sentence of life
plenary,
power
de novo
of review.” Unit
imprisonment
inappropriately
severe
*17
(C.M.A.
Cole,
ed States v.
31 M.J.
272
disproportionate
and
to the sentences of
1990)
866).
(citing
apply
10 U.S.C.
We
closely-related
specified
defendants. We
scope
the standards and
of review in the
two issues.11
950a(a)
950f(d),
§§
2009
and
as it is
M.C.A.
appellant.
more favorable to
See Ham A. Result
Review
of Court’s
dan,
F.Supp.2d
801
at 1264 n.
2011 WL
record,
carefully
We have
considered the
(citations omitted).
n.
*9
pleadings
arguments
the various
and oral
jurisdiction
parties.
findings
We have
over this case of the
We hold that the
because the final
in
decision
and sentence are correct
law and fact
specified
11. The two
issues are as follows:
the Ex
Post Facto clause of
Constitu-
See,
Rumsfeld,
I, II,
e.g.,
v.
tion?
Hamdan
Assuming
Charges
I.
that
and III
U.S.
611 n.
126 S.Ct.
allege underlying
(e.g.,
conduct
murder of
(2006).
L.Ed.2d 723
protected persons) that
violates
law of
Philippine
II.
In numerous Civil War and
"joint
armed conflict and that
criminal en-
cases, military
Insurrection
commissions
terprise”
theory
ais
of individual criminal
conflict,
aiding
providing
liability
persons
convicted
under the law of armed
what,
enemy.
any, impact
"joint
support
the offense of
if
does the
crimi-
Is
enterprise” theory
aiding
enemy
nal
individual
limited to those who have
crimi-
liability
betrayed
allegiance
duty
nal
have on this Court's determina-
to a sover-
Charges
through
eign
Rumsfeld,
tions of whether
I
III
nation? See Hamdan v.
557, 600-01,
32, 607, 693-97,
by military
constitute offenses triable
com-
U.S.
n.
(2006).
charges
mission and whether those
violate
S.Ct.
Following withdrawal of Soviet Al-Qaeda A. The Plan12 mujahideen Afghanistan, varying the from other and Dr. Az- factions turned on each 1979, In the former Soviet December 1991, the facing collapse zam died. In Afghanistan. The Union invaded Soviets struggle Afghanistan, in bin Laden armed by mujahideen opposed were soon the Sudan, enterpris- warriors”), up moved to set business “holy (self-proclaimed Muslim activi- sponsored overseas terrorist including Afghans native and volunteers es ’’ Kohlmann, stated, by from quo- the Plan’ Evan F. Mr. 12. Unless otherwise facts testimony tations in this section are from Prosecution at trial. Tr. 750-815. Kohlmann’s 14A, Al-Qaida "Script: Ex. which is the 'The angered by- calling upon your help asking you Qaeda’s Al leaders were ties. presence part fighting against in Saudi Arabia take in the ene- troop American my your enemy enemy 1991 Persian Gulf War and and their following the — —the prohibits doctrine They that Islamic Americans and the Israelis. are “believed infidels, non-Muslims, in ... presence asking you you the to do whatever can ..., Holy Two Places’ the ‘Land of the expel enemy, the humiliated and de- Peninsula, home to the sacred feated, Arabian out of the sanctities of Islam. and Medina.” cities of Mecca Muslim February In bin Laden and like- 1991, following a “fatwa” In December allies founded the World Islamic minded edict) Qae- on behalf of al (religious issued Against Front Jews Crusaders presence mili- condemning da U.S. signed joint requiring a fatwa all able Mus- attempted militants tary peacekeepers, kill civilian or lims to Americans —whether soldiers Yemen who were en attack U.S. military anywhere they can be found and — In peacekeeping route to Somalia duties. “plunder money.” May their On Laden announced that “the bin 1998, bin Laden issued a second declara- army they now came to the American tion entitled “The Nuclear of Is- Bomb Africa, stop and we have to Horn of lam,” duty in which he stated that “it is the is Amer- head of the snake snake prepare of the Muslims to as much force stop ica and have to them. have to we We possible to terrorize the enemies of stop cut the head and them.” Later that God.” militiamen, year, some of whom Somali 7, 1998, August On U.S. embassies in Qaeda-trained, al down two were shot U.S. Kenya and Tanzania were suicide-bombed helicopters Mogadishu, over Blackhawk Qaeda operatives, resulting al and 18 servicemen were killed U.S. Au- including deaths Americans. On ensuing battle. gust responded by the U.S. regime In the Sudanese ordered striking training camps terrorist and a bin Laden and his associates out of Sudan. suspected weapons laboratory. chemical invi- They Afghanistan relocated to In October Government of- U.S. August tation of the Taliban. bin ficially designated Qaeda foreign al ter- published Laden “declaration of war” it organization, making rorist unlawful for which he wrote: anyone provide States to It is now clear that those who claim that Qaeda, support material to al and froze al (the the blood of the American soldiers Qaeda linked resources held fi- U.S. enemy occupying the land of the Mus- nancial institutions. lims) protected merely should be are In January Qaeda attempted repeating what imposed on them attack on THE the USS SULLIVANS regime; fearing aggression Yemen; however, near the attack boat saving interested in themselves. It is a *19 overloaded and sank. That boat re- was duty every on in now tribe the Arab 12, 2000, disguised covered and on October Jihad, fight, Peninsula to in the cause of friendly welcoming as a civilian boat Allah and to cleanse the land from those port, USS COLE to suicide-detonated Allah occupiers. knows that thefir] COLE, against killing 17 American (to permitted spilled) blood is be and sailors, others, wounding 39 and extensive- booty their wealth is a to those who kill ly damaging ship. them.... Death is better than life in 11, 2001, My ... September humiliation! Muslim Brothers On 19 men recruit- by Qaeda hijacked of The World: Your brothers are ed al four commercial Qaeda States and inten- to al to action. orga- airliners The video is tionally Problem,” crashed one airliner into the Pen- parts: nized into three “The tagon Washington, Causes,” in D.C. and two into “The and “The Solution.” the World Trade Center New York. The appellant’s “The Problem” is portrayal Pennsylvania fourth aircraft af- crashed Muslim nation or “Ummah” and passengers attempted ter the to retake the includes footage purported emotive plane hijackers. from the Thousands of Muslims, particularly children, women and Americans and others were killed as a being mistreated and It killed. also de- September result of the 2001 attacks. picts presence diplomats U.S. and troops in part the Middle East as of “The Appellant’s Background, Conduct, B. Problem.” The video identifies “The and Trial diplomatic Causes” as relationships be- Born in September Yemen on regional tween the United States and lead- appellant speaks well-educated and ers and an alliance between the United English. early some In the 1990s he was States and Israel. inspired by speeches Azzam’s and traveled “The Solution” im- incensing includes Afghanistan to fight Soviet-sup- to ages against of violence women and chil- ported regime. He then returned to Yem- dren, interspersed images with of world en. including leaders American Presidents 1990s, In the late appellant approached laughing. infuriating The horrific and im- Qaeda a known al member Yemen about ages are shown repeatedly religious with returning Afghanistan. money He used ” chanting and “a cappella singing, known Qaeda and a provided by operatives visa al “anasheed,” background audible Afghanistan. traveled to After com- to increase imрact the emotional pleting military-like training, appellant video. The anasheed extol the virtues of pledged bayat talked to bin Laden (suicide martyrdom sacrifice, bombings), of joined Qaeda. Bin Laden then combat, and of somberly chanting lyrics assigned him Qaeda’s to al media office. “revolt, blood, such as revolt ... with Following the October attack on blood.” Tr. 809. The anasheed instructs COLE, ap- USS bin Laden instructed the listener to trade blood for blood and pellant prepare exploiting a video destruction, showing destruction for while attack for recruiting purposes. full- This images against of violence chil- women and video, length entitled “The Destruction of dying, images dren then train- of recruits Cole,” the American Destroyer is com- ing Qaeda in al camps and terrorist attacks prised footage of extensive intended to Americans, finally joyful on Muslims inflame the viewers and incite them to celebrating in highly the streets. After migrate Afghanistan for, to train suffering emotional at- scenes Muslims in, actively participate jihad violent compli- tributed to “Western infidels” against Appellant the United States. cit regimes, Middle Eastern the video as- video, proud of the claiming it was al jihad serts violent as the solution. It calls Qaeda’s propaganda best video at on Afghanistan viewers to come to to train time, and that it “was influential” and for, in, actively ji- participate violent produced good Qaeda. “a result” for al had the United States. Tr. 534. Translated into lan- multiple *20 scenes, guages widely During training camp and bin Laden distributed outside Af- ghanistan, says, jihad power training the video demonstrated “the outcome of this is to persons prior [T]hey incite with no connection for the cause of God.... are wait- or- attacks bin Laden America Before the to annihilate youths our
ing for 9/11 evacuated, site Qaeda’s al Kandahar 15. dered Ex. 31 at Prosecution and Israel.” van, ready the media appellant and told way continues, only to eradicate “[t]he He satellite, computer, televi- which included that has over- and disbelief the humiliation sion, equipment. and radio communications bullets, jihad, of Islam is the Land come and trav- evacuated Kandahar Appellant at 16. operations.” Id. martyrdom and included bin convoy, in a vehicle which eled video, bin Laden the end of Toward On Qaeda other al leaders. Laden and terrorists, declares, and terror is are “[w]e 9/11, unable to obtain a vid- appellant was Let the in the Book of God. obligation Qaeda and other al signal, eo so bin Laden are terrorists and East know we West at- reports first heard leaders 9/11 fear.” Id. at 18. and we strike by appellant. operated via a radio tacks importance he explained Appellant request, appellant re- At bin Laden’s role appellant’s Laden ascribed to and bin impact of the searched the economic 9/11 Qaeda’s supporting man” in al a “media as the results of his provided attacks and objectives: Laden. research to bin Afghanistan I was in I was bored when volun- Following capture, appellant his papers and working computers on investigators re- tarily multiple spoke TVs; I and asked bin and cameras Qae- role in al background his garding martyrdom operation, sui- Laden for a da, status as an including membership, his The operation; but he refused. cide officer, production COLE role refused was that he— why reason he video, in bin Laden’s 1996 “dec- and belief many people other that there are other advised inves- Appellant laration of war.” recruiting people you than or so—the willing to discuss his tigators that he was gets you people more through media unwilling to discuss those own actions but attacks. than suicidal Ex. at 4. He Prosecution others. America, every country Even charged act. committing admitted each world, ministry is the master media letters while de- He also wrote several strategic goals, and it has department; Bay Qaeda to al tained at Guantanamo Nations and Inter- just like the United pledge bayat, his re- renewing leaders Treasury Depart- and the nal Affairs end, fight stating his resolve us, ment; speech bless his God only reaffirming that war is the his belief right. Qaeda’s objectives. Pros- way to secure al Tr. 195. In Prosecution Ex. ecution Ex. 15-18. completed, the video was After work on he stated: per- as his appointed appellant bin Laden on, wage, the days go the war will secretary public sonal assistant and continue, the blood did not conflict will Laden Appellant relations. assisted bin dry, and the fate of their and will never public operated statements. He preparing utmost interests of their civi- [American] equip- processing maintained data by our mortgaged tied to and lization is ment, Atta and arranged for Mohammad region They ... and their stra- Islamic (two hijackers/pilots) Ziad al Jarrah opened biga door tegic 9/11 allies have Laden, fealty prepared pledge to bin regain until we our will not be closed styled “martyr long propaganda holy places declarations war is occupied —the beginning to motivate those individuals to com- at the wills” and we are still it Qae- democracy on its death bed and is mit the attacks and document 9/11 to its demise. about succumb da’s role in those attacks. *21 Frakt, objected legitimacy represent appel- to the would continue to Appellant him military commission that tried and Appellant’s lant. defense counsel then boycott proceed- his intent to indicated commented, “In A1 accordance with Mr. objected ings. representation He also to wishes, demands, Bahlul’s defense under counsel detailed the Chief Defense Military Rule for Commission Military Counsel of Commissions. He ex- speedy trial. The pre- defense waives all pressed proceed pro a desire to se and any trial motions of prepared kind and is represent Appellant himself. also ex- go to trial at the possible soonest date.” pressed aspiration his to absent himself Tr. 85. military from all sessions of the commis- Appellant’s posturing, equivocation sion, except he wanted to attend the final right about his exercise of the to counsel session to hear announcement of his sen- se, and proceeding pro at- variable military tence. The judge commission ad- signifi- tendance have combined to create a voluntary vised that appellant his absence ambiguity cant the record. Detailed right would constitute “waiver of the to be counsel, defense services were whose os- present,” negative- that his absence “could tensibly rejected by pre- at the appellant ly case,” impact presentation of [his] court, ceding session of on Au- appeared his absence would be inconsistent 15, 2008, gust appellant present, without representing pro- with himself and would putatively representing appellant’s wishes. proceeding vide a basis to terminate his ambiguity This our informs treatment of pro Appellant conveyed se. his under- forfeiture, the matters waiver and dis- my final standing stating deci- “[t]his sion, XIV, voluntary[ ]y pp. cussed Part 1256-58. it’s and I’ve chosen infra that.” Tr.78. Appellant attended the next session of
Following colloquy, appellant this ab- September court on and ex- sented himself from the next session of pressed preference his if to attend the trial August military court on 2008. The boy- such attendance would not forfeit his judge appellant’s commission then noted military in- judge cott. The commission absence, voluntary particularly with re- appellant formed that his attendance Frakt, spect pro Major se issue. boycott, would not forfeit his stated counsel, appellant’s detailed defense reprе- appellant subsequent proceed- attended all military judge sented to the commission ings. Appellant pleas guilty entered of not that he willingness discussed his to “de- charges all specifications. With the [appellant] fend manner which exception of administrative matters and [appellant] desired to be defended.” Tr. appellant’s unsworn statement and related Major Frakt also confirmed he had presented documents during presen- the pro representation discussed se issue tencing hearing, appellant presented no appellant, appellant understood defense, closing made no argument, inter- impact voluntary of his absence from evidence, posed objection prosecution no proceedings on his request proceed pro prose- conducted no cross-examination of se, Major and then Frakt related that ap- witnesses, cution no defense presented pellant expressed very strong “his desire evidence. facility to return to the detention and to In an unsworn statement to the mem- have no further communication with coun- during hearing, presentencing ap- bers light sel of kind.” Tr. 80. acknowledged in al pellant membership his appellant’s boycott stated voluntary absence, Qaeda, asserting only “we are the ones on judge commission counsel, Major against you,” ruled that detailed defense earth who will stand *22 1164 judge misap- military commission for the that responsible States
United
award-
years
the law and that the sentence
plied
civilians for 50
innocent
deaths of
you
severe. Whether
you
cup
inappropriately
the same
ed is
give
“we
and as such
jurisdic-
may
He de-
exercise
military
Tr. 968-69.
commission
given us[.]”
have
ques-
not submit to
is a
Qaeda
charged
does
tion over the
offenses
that al
clared
or to international
tion of law we review de novo.
any
government
Arab
Defenders
Gutierrez,
that
law,
He also commented
F.3d
919
only to God.
v.
532
of Wildlife
Hamdan,
(D.C.Cir.2008);
of U.S. Govern-
consequence
F.Supp.2d
was the
801
9/11
willing-
*9;
expressed
he
his
and
Unit-
policies,
ment
13. 2009 M.C.A.
Nerad,
(C.A.A.F.
141-47
findings
States v.
69 M.J.
and sentence of courts-
review
denied,-U.S.-,
2010), yet.
cert.
866(c)).
under 10 U.S.C.
martial
(2010) (describing
S.Ct.
Congress,
punishable under the law
conduct is often
President,
developed
comprehensive
nations,
of civilized
the domestic law
the conduct of
punish
to define
code
nations,
Consideration of
or both.
global-
in a
individuals
widely disparate
aforementioned,
in this statu-
particularly
analysis.
informs our
also
space
battle
nascent
com-
torily prescribed, yet
2006 M.C.A.
review of the
cursory
Even
“requires
proceed
us to
system
missions
*24
cast a wide net of
Congress
reveals
18
circumspection.”
with
liability with
criminal
individual
potential
may be sub-
which
to the offenses
respect
B.
Presented
Issue
military commission.16 Of
ject of trial
jurisdictional
Accordingly, we see the
not,
jurisprudentially
course, we need
that ad-
as similar
to
presented
issue
not, attempt
should
indeed
speaking,
Quirin,
are
parte
Ex
“[w]e
dressed
margins
of this
edges
the outer
define
whether
only
question
concerned
with the
to do so
required
unless
net
plainly broad
power
constitutional
it is within the
controversy.17
a
issue
by specific
place [appellant]
National Government
military
inter-
a
commission for
addition,
hybrid nature of
on trial before
Quirin,
parte
Ex
charged.”
the offenses
presents unique legal
terrorism
national
Assuming
2009)0‘While
controversy.
no constraints
case or
bridge
common Article
U. Press
only pro-
importance,
grounded
it
fundamental
in the Constitution
3 is of
or limitations
rudimentary framework of minimum
Congress
implicated,
vides
to determine
are
it is for
contain much de-
and does not
standards
jurisdiction
subject-matter
of federal
only a
Protocol II contains
.... Additional
tail
Russell,
205, 212,
U.S.
Bowles v.
551
courts.
rudimentary regulation of conduct of
very
2360,
(2007) (‘With-
L.Ed.2d 96
127 S.Ct.
168
hostilities.”),
http://www.icrc.org/eng/assets/
bounds, Congress decides
in constitutional
files/other/customaryintemational-
jurisdic-
have
what cases the federal courts
APII,
humanitarian-law-i-icrc-eng.pdf.
n.
infra
consider’).
applies
rule
with add-
tion to
This
34).
39,
(art.
quoted,
atp.
13 is
at art. 13
infra
tribunals,
I
such as the
ed force to Article
CAAF,
their existence
NMCCAand
which owe
950v;
§
generally 2006 M.C.A.
see also
16. See
authority
legislation
Congress’
to enact
Elsea,
Military
Act
The
Commissions
Jennifer
I, §
Constitution.
pursuant
to Art.
8 of the
Analysis
Rules and
Procedural
2006:
Goldsmith,
[529],
526 U.S.
533-
[Clinton v.]
and the
Comparison
Previous DOD Rules
534,
1538,
10-13;
L.Ed.2d 720
119 S.Ct.
143
Military
Con-
Justice
Code of
Uniform
[(1999)].”).
Report
gressional
Service
for Con-
Research
(CRS Report)
Code No.
gress
Order
Elsea,
27, 2007);
RL336388, (Sept.
Jennifer
1268,
Hamdan,
F.Supp.2d at
2011 WL
18.
801
Military
Act
2006: Back-
Commissions
The
*12;
also United States v.
2923945 at
See
Amendments,
Proposed
CRS Re-
ground and
Chisholm,
151,
(C.A.A.F.2003)
59 M.J.
11, 2009),
(Aug.
Jen-
port Order No. R40752
("Courts established under Article I of the
Militaiy
Act
The
Commissions
nifer Elsea.
Court,
Constitution,
generally
as this
ad
such
Legal
9-14 CRS
Overview and
Issues
2009:
advisory opinions
prohibition
here to the
on
(Apr.
Report Order Code No. RL41163
”)(citing
prudential
matter.
United States
16, 31, 46, 67,
2010).
Reports cited at n.
CRS
(C.M.A.1981));
Clay,
v.
Military commissions derive their The Law C. authority provisions from these of the Con statutes, military stitution as well as usage, President,
“Congress and the
like
Quirin,
and the common law of war.
317
courts,
power
the
no
not
possess
derived
30,
26-28,
34,
2;
U.S. at
Winthrop,
63 S.Ct.
Quirin,
from the Constitution.”
317 U.S.
(2d
Military Law and Precedents at 831
25,
2. The
63 S.Ct.
Constitution invests
1920) (1920 Winthrop). Military
ed.
Congress
authority
in
the
tribu
to:
nals have
Revolutionary
existed since the
Defence,
I,
provide for the common
Art.
War,
Congress
long recognized
and
has
8,
1,
§
...
cl.
To make Rules for the
“ ‘military
...
ap
commission’
as an
Regulation
Government and
of the land
Forces,
I,
8,
14,
propriate
§
naval
tribunal for the trial
punish
and
Art.
cl.
...
and
punish
To define and
ment
against
Piracies and Felo
of offenses
the law of war not
Seas,
high
nies committed on the
and ordinarily
Qui
tried
courts-martial.”
Nations,
against
Offenses
the Law of
rin,
26-27,
... [and] To make all Laws which shall 2 (listing revolutionary military S.Ct. war necessary proper carrying commissions). be and for The Uniform Code of Mili Powers, into Execution foregoing Justice, tary enacted in pro which and all other Powers vested this Con- vides for government rules of the stitution the Government of the Unit- forces, juris armed also acknowledges the States, ed or in Department or Offi- “military diction of the commission” for I, 8,§ cer thereof. Art. cl. 18. punishment trial and of “offenders or of addition, Id. at 1. S.Ct. provided “by fenses” as statute or Congress Constitution authorizes “To con- 821, 836, §§ law of war.” See 10 U.S.C. Supreme stitute Tribunals inferior to the UCMJ, May Act of ch. Const., I, 8,§
Court.”
art.
U.S.
cl. 9.
107, 115, 120,
(quoted
Stat.
in Ham
dan,
548 U.S. at
“The
S.Ct.
Constitution confers on the Presi-
Power,’
II,
Souter,
(Kennedy,
dent the
cited at 652
Ginsburg,
‘executive
Art.
cl.
1,§
imposes
duty
JJ.,
and
on him the
Breyer,
concurring
part)).
to ‘take
statutory
19.
approved,”
Consistent with our
mandate to
should
we
be
will assess each
only
findings
guilty
"affirm
such
... as
charge
underlying specification.
correct
law and fact
[we] find[ ]
and deter-
950f(d).
§M.C.A.
minen,
record,
on the
basis of
entire
to the con-
that the situation relevant
genesis
Winthrop explained
Colonel
Qaeda
our
“incident to the con-
stating,
flict
military
“[I]n
commissions
name of mili-
law,
there is a need “to seize
the distinctive
duct of war” when
adopted for the
commission
subject
has been
measures those
tary
disciplinary
war-court,
...
is essen-
which
exclusively
violated the law of
who
have
enemies
court-
tribunal from the
tially
distinct
war ....’”20
1920 Win-
Articles of war.”
martial
Military
Act of 2006
Commissions
He continued:
throp 831.
developed
The 2006 M.C.A.
provisions
those
general, it is
[I]n
Supreme
response
in direct
passed
Congress
empower
which
Constitution
The stated
in Hamdan.21
Court’s decision
armies,” and
and “raise
“declare war”
is to “estab
of the 2006 M.C.A.
“purpose”
which,
authorizing
the initiation
mil
the use of
procedures governing
lish[ ]
of all
war
employment
authorize the
try
alien unlawful
itary commissions
its
necessary
proper agencies
for
combatants[22] engaged in hostili
enemy
from which this tribu-
prosecution,
due
States for viola
ties
the United
au-
original sanction.
Its
nal derives its
other offenses
tions of the law of war and
authority
thority is thus the same as
by military commission.” 10 U.S.C.
triable
making
waging
of war and
for the
948b(a).
proclaims,
military government
The 2006 M.C.A.
the exercise of
*26
subchapter codify
The commission is
of this
provisions
martial
law.
“[t]he
and
instrumentality for the more
simply
traditionally
an
that
been tri
offenses
have
powers
execution of the war
military
chap
efficient
This
by
able
commissions.
Congress
power
in
and the
vest-
vested
new crimes that did
ter does not establish
in
President as commander-in-
ed
enactment, but rather
not exist before its
in
chief war.
by military
trial
codifies those crimes for
Hamdan,
acknowledges
and
the effect
commission”
in
Id.
(emphasis
original).
pre-existing
stating,
offenses
codifying
of
agreed
military
Supreme Court
“[bjecause
provisions
subchap
of this
historically
used
have
been
commissions
law,
circumstances,
existing
of
ter
are declarative
three
the United States
Qaeda
Hamdan,
enemy
and other unlawful
combat-
U.S. at
126 S.Ct.
548
20.
ants,”
Souter,
(Stevens,
Ginsburg,
Breyer,
“provid[ed] definitions rooted in
and
2749
Quirin,
JJ.,
of con-
concurring) (quoting
U.S. at
United States law for the standards
28-29,
2);
prescribed
Common Article 3.” Mes-
id. at
missions convened under the 2006 M.C.A.
(the
against the Law of Nations”
“Define
(1)
is limited to:
alien23
enemy
unlawful
Clause”) provides
and Punish
Congress a
(AUEC),24
“any
combatants
offense
framework,
basis to establish a statutory
punishable by
made
chapter
this
or the law
M.C.A.,
such as the 2006
trying
948d(a).
§
of war.” 2006
sig
M.C.A.
punishing
violations
the law of war.
jurisdiction
nificance of these limits on the
Const,
I,
addition,
§
U.S.
art.
cl. 10. In
of a military commission convened under
the Government asserts that when Con-
the 2006 M.C.A. to our resolution of the
gress
authority
exercises its
to “define and
assigned error
is difficult to overstate.
punish”
war,
violations
the law of
These limits define both
type
person
conjunction with the Executive
“espe-
subject
to trial
military commission cially in the context of an armed conflict
M.C.A.,
convened under
the 2006
stake,
security
where national
is at
its
AUEC, and the offenses for which that
judgment
greatest
is entitled to the
defer-
sense,
person may be tried. In a broad
In response, appellant
ence.”
avers that
provisions
these two
personal
define the
“Supreme
Court has
re-
consistently
personam jurisdiction
and are funda
quired
plain
and unambiguous showing
mental to
subject
the definition of
matter
that a war crime was established under the
jurisdiction
commissions con
laws of war” when
charged
conduct
vened under the 2006 M.C.A.
occurred.26
948a(3) ("The
23. 2006 M.C.A.
Reply
Specified
term alien’
Appel
Brief on
Issues for
*27
person
a
Hamdan,
means
who is not a citizen
602,
of the
(citing
lant 5
24. 2006 M.C.A.
The term 'un-
1, 17,
340,
(1946);
U.S.
66 S.Ct.
1171
“greatest
sition that
deference”
is due
er to make
punishable by military
conduct
commission
without
reference to inter
Congress’ determination that
the offenses
national
It
emphatically
norms.30
appellant
of which
stands convicted consti-
province
duty
reviewing
of a
Court to
nations;
the law of
tute offenses under
“say ‘what the law is.’” Boumediene v.
that determination
particularly where
di-
Bush,
723,
553 U.S.
128 S.Ct.
rectly
in-
implicates
security
both national
41,
171 L.Ed.2d
77
(quoting Mar
in an ongoing
terests
armed conflict and
177);
bury,
Hamdan,
5 U.S. at
see also
affairs,
foreign
including interpretation of
F.Supp.2d
will
by Congress to
Supreme
statutory
employed
scheme
Court’s
dard discussed-
offense,
name of
the ele-
decision,
that a
include the
the
Hamdan
aware
standard
offense,
may, as ments of that
the forum
which
the Government
more favorable to
punishable,
applica-
that
is
and the
law,
applicable.32
offense
matter of
be
Where
a
great defer-
rules/procedures,
that
acts
ble
is due
certain
Congress’ determination
of na-
ence.33
under
law
constitute offenses
al) (''[T]here
questions
superseding
M.C.A.] the
as to
scheme
the 2006
are serious
'merely
has failed even to offer a
support for
or ter-
Government
whether material
terrorism
conspiracy
case for
of
groups
a traditional violation of the
colorable’
inclusion
rorists
is
cognizable by
among
offenses
law-of-
experts
war
believe that there
those
law of
.... our
691-92,
commission.”),
at
significant
appellate
will
id.
a
risk that
courts
war
is
Scalia, JJ,
(Thomas
dis-
ultimately
support for
126
2749
that material
S.Ct.
conclude
(urging
approach
evalu-
senting)
a "flexible
to
is
a traditional law of war of-
terrorism not
Elsea,
adequacy
charge”
fense[.]”)(quoted
Report
ating
CRS
of Hamdan’s
but
.No.
However,
R40752,
16,
65).
charge
indicating
conspiracy
“easi-
at 10 n.
Hamdan's
n.
ly
plurality’s
Congress
even the
manufactured
recommended that
satisfies
other witnesses
2749,”),
rule,”
support
providing
terror-
see
126 S.Ct.
id.
retain
material
for
infra
702,
Scalia,
(Thomas,
at
2749
a
war offense in the 2009 MCA.
126 S.Ct.
ism as
law of
Comm,
Services,
Alito, JJ., dissenting).
show-
Legal
Armed
Issues
The “substantial
Sen.
on
ing
Military
used
Regarding
Commissions and the Trial
test” has been
in the habeas context.
War,
example,
initially
petitions
For
Hamdan
filed
Detainees Violations
Law
of
of
for
(S.
20,
111-190),
Cong.,
Hrg.
corpus
for
of habeas
and mandamus to
111th
1st Sess.
writs
7, 2009).
challenge
(July
intended means of
105
H.R. Subcomm. on
President's
Constitution,
prosecuting
charge
conspiracy
Rights, and
a
to commit
Civil Liberties
Civil
Comm,
Jud.,
by military
Proposals
triable
commission. To
of the
on
offenses
for Reform of
relief,
System,
required
Military
receive habeas
he was
Commissions
111th
109,
Sess.,
Cong.,
showing
denial
1st
H.R. Doc 111-26 at
a substantial
of the
"ma[k]e
Hamdan,
30, 2009).
right”
a
(July
appeal.
See
on
28 U.S.C.
121-23
also
constitutional
34,
137,
Cohen,
2253(c)(2).
F.Supp.2d
v.
at 1271 n.
n.
New
129 F.3d
801
1301
(D.C.Cir.1997) (Schlesinger v. Council-
1173
nations,”
incorporating existing
When
of
according
to “Blackstone and
Mansfield,
fenses
the law of nations into Lord
...
incorporated into the
American jurisprudence,
it is well within
England.”34
common law of
scope
“[T]he
Congress’ grant of authority under the
and structure
of the law of nations
Define and Punish Clause to define the
in the
century
[evolved]
nineteenth
...
specific elements of an offense in
con
[and]
law of
govern
nations came to
text of the American legal system.
primarily
See
among nation-states,
relations
Hamdan,
40,
801
F.Supp.2d
1274 and n.
reflecting this new orientation the law of
1318-20,
as their only by men, responsi- rise the committed not gave national law are their breach Crimes Research entities, only by War bility punishing the state.” of abstract A Criminal Law: Office, International such can commit crimes individuals who Extraordinary the Discussion Guide provisions of international law be en- the 36 Cambodia War the Courts Chambers in of forced.” 5 Crimes, College of Law Am. Wash. U. over their ter- sovereignty The of states 2006). (May nationals, ritory protection of “suc- the law nations or recently, of More scourge of ceeding generations from defined as “rules international law is war,” maintenance of “internation- and the application dealing general of principles security remain fundamental peace” interna- of States and of with the conduct law. tenets of international Preamble their rela- organizations tional Article Nations Charter. The se, well as of their as some tions inter sources of international generally accepted juridi- persons, natural or relations with include: law (Third) Foreign Re- cal.” Restatement of a. conventions establish- international States, § 101 of the United lations Law recognized by the ing expressly rules (1987). modern definition reflects This states; contesting law, per- integration of humanitarian succinctly human haps more individual custom, of as evidence b. international body rights, evolving previ- into the of law law; as general accepted a practice among related relations ously primarily recog- c. of general principles law with almost exclusive focus nation states nations; nized civilized sovereignty. on state judicial d .... decisions and the teach- War II a produced horrors of World The ings highly qualified publi- of the most law, developments international host of nations, subsidiary cists of the various significant crystalliza- most was among the of rules of means for the determination tion that violation of cer- principle of the law.37 norms, of tain even on behalf international state, give could to individual nation rise 4. The Armed Law of Conflict emergence The of responsibility. criminal traditional function International law’s by the primarily this driven principle among regulating of relations between and means of for effective enforcement. need Military importance apex The at Nu- states is at the when International Tribunal Hamdan, Major F.Supp.2d v. WL 36. War Criminals 2011 1 Trials Before Military (listing sources interna- Tribunal at 223 2923945 at *10 six the International record, (1947). law) (citing War 42-volume as the tional Trials Criminals known Series,” Major Nurenberg Military Trial of the Tribunals Under "The Blue Before (1950)). Nuremberg, War Criminals before IMT at Law No. 10 at Control Council (Third) Foreign to Oct. cited here as Nov. Relations Law Restatement (1987) ("(2) Customary T.M.W.C. These volumes are available international http://www.loc.gov/rr/frd/Military-Law/NT- general law and consistent results from major-war-criminals.html. practice followed them from a of states legal obligation prin- sense General ciples major legal systems, 37. Court of Jus- common to Statute International (June 26, 1945), (ICJ Statute), incorporated or art. 38 even if not reflected in cus- tice tomary agreement, may international See also Khulumani v. Bar- law or Stat. Ltd., supplementary rules clay Bank 504 F.3d be invoked as of interna- National (2d Cir.2007) (citation omitted); appropriate.”). tional United States law where
1175
degenerate
those relations
into armed con-
treatise,
his influential 1886
Colonel
William
Indeed,
Winthrop explained the
regulation
flict.
of
con-
laws or
armed
customs of war as:
long
recognized
flict has
been
as essential
[T]he rules and principles, almost wholly
preservation
of civilization. The
unwritten, which regulate the inter-
corpus of
regulate
international norms that
course and acts of
during
individuals
the conduct of
provide
hostilities and that
carrying on of war between hostile na-
protection
persons
for
taking part,
not
tions or peoples.
properly
While
ob-
longer
no
taking part,
in hostilities is
by
served
military commanders in the
conflict,38
known as the law of armed
is one
field, they may often also enter into the
of
subject
the oldest
areas of international
question of the due administration of
“customary
law.
It is the
treaty
law
justice by military courts in cases of
applicable to the conduct of
warfare
pеrsons charged with offences growing
and to relationships between belligerents
out of the state of war. Such laws and
...”
“requires
belligerents
that
re-
customs
especially
would
be taken into
military
consideration
commissions
frain
employing any
from
degree
kind or
in passing upon offences in violation of
of violence which
actually
is not
necessary
the laws of war.
purposes and that they con-
Law,
Military
Winthrop,
I,
William
vol.
duct
regard
hostilities with
princi-
for the
(Morrison 1886).
42-43
ples of humanity
chivalry.”
Dep’t. of
treatise,
Since Colonel Winthrop’s 1886
Army,
The Law of
Field Manual
the number of conventions and treaties
(1956) (1956
Land
27-10),
FM
Warfare
applicable in armed conflict has increased
¶¶ 1,
Quirin,
3. See also
29,
“Geneva Hague Law.”39 law primarily ad- 38. Also known as the law of war or interna- al Humanitarian Law includes two additional law, phrases tional widespread humanitarian these treaties adoption. will be Protocol synonymously throughout used opinion; this Additional to the Geneva Conventions of Eckert, e.g., August see Amy Relating Manooher Mofidi & E. to the Protection of (API) Combatants" Victims International Armed “Prisoners “Unlawful of of Conflicts Labels, (Geneva, 8, 1977), (No. War": The Law and June Politics 1125 U.N.T.S. 3 of 17512); (2003)("International Cornell Inti. L.J. Protocol Additional to the Geneva is, broadly, August humanitarian law” Conventions Relating branch of public international law that seeks to to the Protection moder- Victims Non-Intema- (APII) (Geneva, ate the conduct mitigate of armed conflict and tional Armed June Conflicts 8, 1977), suffering (No. 17513), predicated it upon causes. It is 1125 U.N.T.S. 609 namely, ideas ... I.L.M. July that methods and entered into means of force for UN subject legal warfare are parties and ethical 1978. API has 171 state limita- and 4 tions, signatories. and that the state parties victims of armed conflict APII has 166 state signatories. are entitled protec- to humanitarian care and 3 state The United States (citation omitted)). tion.” has not ratified API either or APII. See Letter (Jan. 1987) Reagan of President Ronald generally Hague See IV transmitting Convention APII to the Senate at III-IV IV) (Hague Respecting APII, (recommending Laws and Customs ratification of but stat- (Oct. 1907), War on Land ing fundamentally 36 Stat. "Protocol I is and irrecon- 2277; Hague IX), (Hague cilably Convention IX provisions flawed. It contains Concerning Bombardment Naval Forces in would undermine humanitarian law and en- War, (Oct. 18, 1907), 2314; war____[One] Time danger 36 Stat. provision civilians in Hague V), (Hague Respecting Convention V grant irregular would combatant status to Rights and Duties Neutral they satisfy Powers and forces even if do not the tradi- (Oct. 18, Persons in Case War requirements distinguish on Land tional themselves 1907); GCIV, supra GCI to n. 6. population Internation- from the civilian and otherwise *33 (citations Id. at 709 belligerent’s hands.” hostili- the conduct of on restraints dresses Charter, omitted). Nations The United of outright prohibition ties, including the Clause,”40 and other treaties the “Martens of warfare. and methods means certain into the law of Enemy also factor Rosen, Targeting and conventions D. Richard may defining who Preserving including conflict armed on Terror: in the War Forces conflict and engage in armed lawfully Immunity, 42 Vand. J. Transnatl. Civilian (citations lawful under (2009) to armed force is when resort 41 683, and n. L. 692 or customs of law. Laws on international omitted). focuses primarily law Geneva key in four grounded conflict are armed and combatants of civilians the “treatment (2) (1) distinction;41 combat who principles: fall into a hors de rendered nations, from the laws of civilized would between laws of war. This comply with the humanity requirements public of the among terrorists and the endanger whom civilians ap- attempt them- The Martens Clause first irregulars to conceal conscience.” other and Petras, selves.”); Hague Law Air Christopher peared preamble The to the 1899 of Principles II) Legal Mobility (Hague respect International to the II Convention —The Mission, land, Mobility Air Forces’ the U.S. Behind war on is laws and customs of ("The 1, (2010) APII, 24 and n. 132 A.F. L.Rev. 66 API and see in GCI-IV and restated party Ticehurst, Protocol I 6, to Additional U.S. is not Rupert The supra nn. 39. See reflecting customary views much of it as but Armed Con- Clause and the Laws Martens of Matheson, See Michael law. international No. flict, Review the Red Cross International of Position on The United States Preamble, Session One: 317, (1997) (citing at 125-34 Customary International Law the Relation IV, 39; Hague supra the four 1949 Geneva of n. n Additional to 1949 the 1977 Protocols victims, protection war for the of Conventions Conventions, 2 U.J. L. & Am. Inti. Geneva 63; 62; (GCI; art. GCII: art. n. 6 (1987)”; Pol’y. other citations omit- 419-31 cit., 142; 158), op. pp. art. GCIII: art. GCIV: Rosen, ted). Targeting See also Richard D. 390, API, cit., 169-337; 1(2), p. op. art. Enemy in the War on Terror: Preserv- Forces cit., 449; APII, Preamble, p. Weap- op. Immunity, 42 Vand. J. Transnatl. ing Civilian cit., Convention, Preamble, 473), op. p. ons Smith, 683, (2009); New Daniel L. 688-92 http://www.loc.gov/rr/frd/Military-jLaw/pdf/RC- Armed Victims International Protections of for Mar-Apr1997.pdf. Proposed Proto- Ratification of Conflicts: col States, 120 Mil. L.Rev. II the United 5.3.2, Navy, Chapter Dep’t U.S. 41. See (1988)("The 59, proposed n. 41 66-69 and Ma- Publication Naval Warfare 1-14M/U.S. understandings to Protocol reservations 5-12.1, Corps The Commander’s rine MCPW II, reasons for these recommenda- and the Operations the Law of Naval Handbook on tions, Department forth in a State are set ("The 2007) (July 1-14M] NWP [hereinafter Reagan. This Report to President submitted concerned with dis- principle of distinction is Treaty No. Report printed S. Don tinguishing from civilians and combatants (1987) Cong., [hereinafter 100th 1st Sess. objects military objects so as to from civilian Department Report].”); Protocol Addi- State damage civilian ob- to civilians and minimize August Conventions tional to the Geneva 1949, API, supra n. jects.”); art. see see also relating Adoption an Addi- ("Parties at all times to the conflict shall (Dec. (APIII) Emblem tional Distinctive population distinguish between the civilian 2005) Jan. into force for UN entered objects and between civilian and combatants Aug. APIII U.S. ratified accordingly military objectives shall signatories. parties and state has 170 state .5 only against military operations direct their Richemond, Daphne Reexam- objectives.”); part Clause forms a of the 40. The Martens conflict; ining Terroiist the Law War: Transnational “Until a more com- laws of armed Force, Cath. issued, Organizations and the Use plete war is code of the laws of (2007) (citing and n. 81 U.L.Rev. right High Contracting think it to de- Parties Vitoria, Ivre Belli de De Indis et de Francisco Regula- clare that in cases not included ed., (Ernest Pawley them, Reflectiones) Nys John populations and bel- adopted tions trans., (1532), 1917) reprinted in The Bate protection and ligerents under the remain (James law, International Law 171 Classics of empire principles international ed., 1917) ("we may turn not usages Brown Scott they established result from (4) necessity;42 proportionality;43 enjoy immunity” batants “combatant for humanity.44 principles pre-capture warfare, These four are the their acts of including lawful targeting, cornerstones conduct of wounding, killing of other conflict, beings, armed and more relevant to our human provided those actions were inquiry, may pro- the deviation from which performed ongoing context hostil- *34 against vide the basis for individual criminal re- ities military lawful targets, and sponsibility for of the violation laws and were not violation the of law of war.45 4, GCIII, 6, customs of war. Article of n. supra makes it clear that lawful combatants will generally a. Combatants —Lawful Unlawful only regular include the armed forces of a conflict, to party including the “members While the aforementioned corps of militias or volunteer forming part principles impose on the restraints conduct of such armed forces” members of hostilities, of the privilege” “combatants’ is militia, corps, other orga- volunteer a fundamental rule of the of law armed nized resistance movements belonging to a conflict. The of “privilege combatant im party long State to the conflict so they munity” is limited to “lawful combatants” fulfill following the four conditions that are quid pro and “the for quo attaining such 948a(2) also included M.C.A. 2006 immunity must be that combatants distin at n. 53: guish themselves from the civilian popula infra is, They 1. are under the command of ‘persons
tion —that
entitled to
immunity
responsible
individual who is
for
pre-capture
for
their
war-like acts must have
subordinates;
legitimate targets
made themselves
while
” Rosen,
performing
supra
those acts.’
n.
2. They
a
sign
wear
fixed distinctive
(citation
39,
omitted).
at 770
symbol
distance;
Lawful com-
a
recognizable at
harm,
API,
gained.”);
51(5)(b),
("An
our sword
who do us no
supra
those
art.
n. 39
killing
being
may
of innocent
forbidden
attack
expected
which
be
to cause inci-
law.”).
life,
civilians,
natural
injury
dental loss of civilian
to
damage
objects,
to civilian
or a combination
(“it
23(g),
thereof,
Hague
42. Article
to
Annex
IV
is
which would be excessive in relation
especially
destroy
forbidden.... To
or seize
military
advantage
concrete and direct
enemy’s
property, unless such destruction
anticipated”
principle
propor-
violates the
of
imperatively
or seizure be
demanded
tionality.”).
war”);
necessities of
See also Joint Publica-
1-02, Department
tion
Dictionary
Coupland, Humanity:
of Defense
44. Robin
What
it
is
15,
law?,
Military
of
(May
and Associated Terms
and how does it
international
influence
2011)
(military necessity
principle
83 International Review of the Red Cross No.
—The
whereby
belligerent
(Dec. 2001),
right
apply
http://www.icrc.
has
969-89
any
required
bring
measures
orglenglassets/fileslother/irrc-844-coupland.
which are
about
pdf.
the successful conclusion of a
operation
not
and which are
forbidden
Khadr,
war);
45.
Dep’t
Army,
F.Supp.2d
laws of
United States v.
of the
Field Manu-
1215,
27-10,
(USCMCR 2007)
Warfare,
(citing
The Law Land
Johnson
(1956
763,
¶
27-10)
3;
1-14M,
Eisentrager,
v.
supra
FM
NWP
339 U.S.
70 S.Ct.
(Black,
(1950))
n.
at 5.3.1.
“Lawful POWs. “Unlawful batants who become immunity [en and ... combatant [have] subject capture are to combatants likewise of the Geneva protections the joy] ... sick, detention, they and while addition are if wounded and but in Conventions (POWs).” prisoners of war being held as military subject punishment by trial and to Khadr, F.Supp.2d v. 717 States United acts which render their belli- tribunals for (USCMCR 2007) (citations 1215, 1221 2; 31, at gerency unlawful.” Id. 63 S.Ct. combatants, omitted). enemy who Lawful Lindh, v. 212 also States see for that violate the being are tried offenses (E.D.Va.2002). 541, F.Supp.2d 554 “post-capture of of or for their law war Ar- implementation Prior to of Common POWs, they are fenses committed while 3, men on irregular carrying ticle bands of courts, by the to be tried same are entitled the proce irregular compliance the not in accordance with same wars and in dures, power would uti detaining that the under com- law of armed conflict were of its armed try lize members own to a upon capture subject law war to mon of ene (i.e., for lawful forces court-martial death, trial.46 punishment of often without my the United combatants held a and executions without “[Sentences GCIII, States).” n. (citing Id. practice” in proper trial were common 102.). arts. and 87 many prior they to were nations to the civilized” shocking “nevertheless agreement “By universal Article drafters of Common law of draws a distinction GCI-GCIV.47 practice, the war Glazier, Past, Compi- (quoting War A Laws War: The the Rebellion: 46. David of of Present, Ne- Precedents Lost: The lation Records the Union and Future: Official of of Commission, Armies, II, Military History glected 46 vol. 1 242-43 ser. Confederate (1894)) ("It 'a principle, Va. L. uni- was a C‘[I]t J. Inti. 36 well-established war, Halleck, give quarter to right ‘insurgents not to an versal said General puts guerrilla into enemy marauding, predatory death all who fall his to bands Scott, during exemption Winfield mili- [General hands.’ are not entitled’ from 1847,] ‘by tary War in could have had the Mexican These men are the laws tribunals. [, stragglers from the regarded outlaws who attacked no nor mur- war as more less than derers, logi- ”). Army,] a spot. As American shot on robbers thieves.’ result, pro- any procedural process cal due Hamdan, at 126 S.Ct. requirements.” 47. U.S. vided exceeded international Scalia, Thomas, JJ., Fisher, (Alito, (citations omitted)). dissent- also Louis See Comm, Pictet, Military ing) (quoting Military His- Jean S. Inti. Tribunals: Tribunals: Cross, (CRS Commentary: at Re- Red Geneva Convention torical Patterns and Lessons RL32458, 2004) July the Condition port Amelioration Order Code No. 3320), prohibits passing provided “the of sentences at one of the two primary previous judgment pronounced by without Supreme bases for the Court’s conclusion regularly affording constituted court all that the commission convened un- judicial guarantees recog- which are Military der Commission Order No. indispensable peo- nized as civilized authority lacked the try Hamdan. Id. ples.” 632-33,126 S.Ct. 2749. Although international conventions and 3, applicable Common Article primarily treaties address international Qaeda, the United States’ with al conflict armed conflict or “conflict na between elementary reflects considerations of hu tions,” Hamdan, Supreme Court manity, “provides rudimentary frame concluded that “at least” Common Article standards[,] work minimum and does (so Geneva Conventions called Customary not contain much detail.” In appeared because it in all four conven (IHL), ternational Humanitarian Law In tions) applies to the United States’ conflict ternational Committee of the Red Cross Qaeda. with Al Hamdan at 548 U.S. (ICRC), 2005, vol. I at Intro. XXXV. 629-30, 126 rea S.Ct. The Court Common Article 3 was adopted provide soned: *36 minimum humanitarian applica standards in a “conflict not of an international conflict, ble in internal including armed in occurring territory character the of prohibition of “sentences and executions Parties, one of High Contracting the previous “summary jus without trial” or Party[49] each the to conflict shall be GCI, supra tice.” n. 6. Less than one minimum,” bound to as a apply, certain in typed page length, Common Article 3 provisions protecting “[pjersons taking declares in GCI: hostilities, no part including active in the In the case of armed conflict not of an members of armed forces who have laid international in occurring character the down their placed arms and those hors territory of one of High Contracting the by de combat ... detention.” Parties, Party each to the conflict shall ¶3, GCIII, 1(d), (citing Id. art. at U.S.T. apply, minimum, be bound to as a the 3320). Hamdan, with noncompliance following provisions: requirement the that “judgment pro- [be] taking part Persons no active by nounced a regularly constituted court hostilities, including members of armed affording all judicial guarantees the which forces who have laid their down arms recognized indispensable are civi- as placed lized combat’ ... peoples,” id. S.Ct. those ‘hors de ¶3, (citing GCIII, 1(d), art. shall in all be U.S.T. circumstances treated hu- ing prevent presumed Wounded and in Armed the person Sick Forces in in it to to be (1952)), http://www.loc.gov/rr/frd/ Field 54 guilty being placed so from arrested and in a Military JLaw/pdf/GC-1949-1.pdf. harm; position where he can do no further right intact of and it leaves the the State to 3(l)(d). Pictet, supra 48. Common Article See prosecute, punish according sentence and ("All n. at 54 civilized nations surround law.”). the justice of safeguards administration eliminating possibility aimed at of errors. "Party” 49. The term here has the broadest rightly proclaimed The Convention has it possible meaning; Party need neither be a is essential to do this even in time war. of signatory repre- of the Convention nor "even We very point: must be clear about it one is legal entity capable undertaking sent a only of in- 'summary' justice which it is intended prohibit. obligations.” immunity given Commentary ternational GCIII No sort is anyone provision. under this There noth- 37. is mili- arising from dangers any adverse distinction manely, without faith, race, colour, give To to this religion tary operations. or on founded effect sex, wealth, following be any protection, other similar rules shall birth end, 2. The following acts in all circumstances. criteria. To this observed such, any as as well as prohibited population remain civilian are and shall civilians, not the ob- any place whatsoever with shall be time and individual ject vio- persons: of attack. Acts or threats respect to the above-mentioned (a) purpose which is to person, particu- primary to life and lence the violence kinds, mutilation, popu- spread among all cruel terror the civilian lar murder of (b) torture; Civilians shall taking prohibited. are treatment lation (c) personal by this outrages upon enjoy protection afforded hostages; Part, they humiliating de- unless for such time as particular dignity, (d) treatment; passing part a direct hostilities. grading take carrying out of execu- sentences APII, (emphasis add- art. n. 39 previous judgment pro- tions without ed). by a regularly constituted
nounced say it there no stat Suffice is court, judicial affording guaran- all the ute, agree international treaty, or other indispens- recognized tees are which exhaustively all of ment which details peoples. civilized able laws or or conduct violative fenses Article 3 supplemented Common is However, the “fundamen customs of war. articles, of 28 comprised APII.50 APII applicable tal “at guarantees” treaties guarantees” pro- including “fundamental any place and in whatsoever” time *37 hibiting: an including conflicts not of international any place and in whatsoever: any time character, murder, the explicitly prohibit:
(a) life, physi- health and violence civilians, of targeting intentional of “acts in well-being persons, cal mental of or terrorism,” and “acts or threats of violence murder well as cruel treat- particular as purpose spread of which is to primary torture, any mutilation or ment such as population” as among terror the civilian (c) punishment ... tak- corporal form of alleged directly specifically implicated or (d) terrorism; ing hostages ... acts of Article 3 here. See Discussion of Common (h) threats commit or the [and] n. pp. supra and APII at These 39. acts. foregoing prohibitions guarantees fundamental ¶¶ APII, determining appel art. 1-2. “Protection of are whether central of fundamental im- population” lawfully punished by civilian is lant was tried port: Although military commission. Common indi specifically adopt
1.
Article 3 does not
population
The civilian
individu-
violation,
liability for its
enjoy general protection
shall
vidual criminal
civilians
House,
urges
Reagan
1987.
50. The White
Office of the
Sec
in
The Administration
Press
retary,
Sheet:
on Guantana
practicable
Fact
New Actions
to act
as
on
the Senate
as soon
7, 2011("Be-
Policy,
mo and Detainee
Mar.
interagency re
Protocol^] An extensive
this
importance
cause
the vital
of the rule of
view concluded that
States
legitimacy
law to the effectiveness and
of our
already
practice
Proto
is
consistent with the
security policy, the Administration is
national
")
added);
(emphasis
provisions
see also
col’s
announcing
support
...
[APII]
our
Reagan, Message to the Senate
President
protocol]
guaran
fair
[This
contains ...
trial
29, 1987,
APII,
Transmitting
http://www.
Jan.
apply
tees that
in the context of non-interna
loc.gov/rr/frdlMilitaryJLaw/pdf/protocol-II
conflicts,
originally
tional
submit
armed
100-2.pdf.
39.
See also
n.
approval by
ted to the Senate for
President
beyond
Article 3 are
tends
violations Common
consid-
the cessation of hostilities
general
until a
peace
conclusion of
internationally
domestically
ered
reached; or, in the case of internal con-
crimes or war crimes.51
flicts,
peaceful
settlement is achieved.
Appeals
The
of the In
Chamber
¶
Tadic,
IT-94-1-AR72
70. Although
for the for
ternational Criminal Tribunal
we are not
bound
the ICTY Appeals
(ICTY),
Yugoslavia
an ad hoc
Tadic,
mer
tribunal Chamber’s decision in
the principles
embodied
Tadic reveal
that
conduct
established
the United Nations
during
armed conflict
breaches funda-
varying
to address
atrocities that
took
mental principles
may
or values
provide
place during the conflicts
the Balkans in
the basis for individual criminal liability for
1990s,
very
this
issue.
addressed
violation of the common law of war.
Tadic, the Appeals Chamber found that
applicable
Fundamental
laws
in any
certain norms of international armed con
conflict,
armed
regardless
type, and rel-
through
flict have
customary
evolved
law
evant here include:
now apply
non-international
during
(1)
enjoy
Lawful combatants
combatant
armed conflict as well. Prosecutor v. Tad
immunity for pre-capture acts of warfare
i n ,
IT-94-1-AR72,
Case No.
Jurisdiction
performed
ongoing
the context of
hostil-
¶¶
(Oct. 2,1995).
67-71
Appeal,
Specifical
military targets.
ities
lawful
To
ly:
qualify as a lawful
an
combatant
individual
armed
exists
conflict
whenever
satisfy
must
specified
the conditions
there is
resort to armed force between
948a(2)
2006 M.C.A.
at n. 53 and
infra
or protracted
States
armed violence
p.
be-
listed
1182.
infra
governmental
tween
authorities and or-
pro
The law of armed conflict
ganized
groups
armed
between such hibits the
targeting
intentional
of civilians
within
groups
a State.
International hu-
pri
“[a]ets
threats
violence the
manitarian
from
applies
law
the initi- mary purpose of which is to spread terror
ation
such
conflicts
among
armed
and ex-
population.”52
civilian
Jinks,
(ICTR),
Declining Significance
Derek
art.
33 I.L.M.
S.C. Res.
*38
Status,
367,
955,
8,
(Nov.
POW
45 Harv. Intl. L.J.
428-30
2004)(im-
U.N. Doc. S/RES/955
(2004) ("The
nn. 347-51
War
U.S.
Crimes Act
poses
liability
criminal
for serious violations
expressly
was amended in 1997 to cover
all
3, including
of Common Article
for "acts of
Foreign
violations of Common
3. See
Article
Tadic,
terrorism”);
v.
Prosecutor
Jurisdiction
Operations, Export Financing, and Related
IT-94-1-AR72, ¶¶
(Oct. 2,
Appeal, No.
87-91
1998,
Programs Appropriations Act of
Pub. L.
1995) (Tadic
Appeal),
Jurisdiction
35 I.L.M.
105-118,
(1997) (codified
No.
111 Stat. 2386
(1996)(International
32
Criminal Tribunal for
(amended
2441(c) (2000))
§
18
at
U.S.C.
(ICTY)
Yugoslavia
provi-
Former
statute
replace
'grave
to
1997
the term
breaches’
concerning
sion
"other serious violations of
‘war crime’
with
and to include violations of
necessarily
the laws and
of war”
customs
Common Article 3 within the definition of
3);
includes violations of Common Article
crimеs). Every
war
U.S. court
to consider
Graditzky,
Responsi-
Tom
Individual Criminal
issue
has classified violations of Common
bility
Violations
International Humani-
for
of
3
Article
as ‘serious
of
violations
international
tarian Law in Non-International Armed Con-
See, e.g.,
law’ and ‘war crimes.’
Kadic v.
flicts,
(1998)
322 Inti. Rev. Red Cross 29
Karadzic,
(2d Cir.1995);
and other corroborating ap The commission judge applied Yemen, pellant was a citizen of and that he the 2006 precisely M.C.A. that manner. neither a nor resident was citizen of the He instructed the members that States; appellant was AUEC was an determination element combatant, not a lawful as that term is offenses,” “common to all the and further 948a(2). § defined 2006 M.C.A. See su government instructed that “the must n. pra 53. prove you a beyond reasonable doubt AUEC, an [appellant]” The was specification charge explicit- defining of each key each ly appellant stated that was an term accordance with the stat- AUEC and alleged Qaeda. a direct to al ute.57 Accordingly, appellant’s nexus status as appellant interlocutory question "is or has ever been a lawful resi- shall be determined evidence, preponderance dent of the United Tr. this States." 298- unless Likewise, Manual.”). otherwise stated explicitly he did not in this appellant find that was not “lawful combat- II, (2008), 801(a)(4) 56. See MCM R.C.M. Part ant,” as that term defined in the Discussion, 801(e)(4) R.C.M. and Discus- 948a(l). M.C.A. Though See n. 24. sion, App. 21-42 to 21-44. challenged appeal, assuming not on trial or error, arguendo it we conclude that record, including appellant’s pretrial 57. The materially prejudice such error did not admissions, beyond any establish reasonable *40 rights appellant. substantial of 2009 M.C.A. Yemen, doubt that he was a citizen of and 950a(a). § presented supporting there was no evidence a finding appellant that was a lawful combat- M.M.C., II, 801(a)(4) (the 55. 2007 Part R.M.C. Moreover, members, upon ant. the based the military judge "[r]ule[s] commission on all military judge's commission instructions con- interlocutory questions questions and all of beyond appel- cluded a doubt that reasonable commissions”); during military law raised enemy the lant was an alien unlawful combatant (AUEC) 801(e)(2) ("Questions at Id. R.M.C. of fact in and not a lawful combatant as de-
1184 omitted). Clearly, the marks both military the com- tation crucial to
an AUEC was M.C.A., jurisdiction ap- over see of of the 2006 plain language mission’s exercise guilt. of his pellant 24, Quirin and determination n. and use the word supra to the word “unlawful” contradistinction (a) Law of Armed Con- and the AUEC supra “privileged.” See n. 58. “lawful” flict conflict, an law armed the of Under (b) Irregular Warfare effectively synonymous with AUEC is belligerent,” in oth- enemy “unprivileged the a At the time of Civil War it was belligerent who is not entitled er words principle guerilla- that well-established or, immunity” cap- upon to “combatant exempt military not from type bands were It ture, as of war. prisoner treatment tribunals, by and the “laws of war” treat- statutory language the and upon is based murderers, and ed as robbers thieves. findings by military the commis- required (citation 46, Fisher, n. at 19 omit- supra sub- Congress’ and members. judge sion ted). Early the American Civil War phrase “unprivileged ene- of the stitution Army, then of the General-in-Chief U.S. enemy my for “unlawful belligerent” (MG) Major posed Halleck General H.W. 2009 M.C.A. further combatant” the Dr. questions to Francis several related supports proposition.58 this Lieber, law and expert a noted of war discussed, com- previously As “unlawful Code, of future author Lieber one subject punish- to trial and are batants first of laws of comprehensive lists the military tribunals for acts which ment Halleck war.59General noted: Qui- belligerency render their unlawful.” right rebel to send authorities claim rin, at 63 2. The 317 U.S. S.Ct. men, citizens, to garb peaceful in the of Supreme long recognized Court has waylay attack troops, and [Union] men, who, bodies without “men and of houses, destroy bridges burn com- being belligerents nevertheless lawful persons within property [Union] of kind are mit hostile acts not entitled They lines. that such persons demand if prisoners of war privileges ordinary belligerents, be as treated captured, may be tried captured they that when treated as [be punished by or less- commission death war]; prisoners they also threaten 2 punishment.” er Id. 63 S.Ct. persons punished that if ma- such be (citing pro- Rules Land 1940 Warfare spies, they will retali- rauders mulgated by Department for War ¶ 351)(internal Army, quo- executing prisoners ate guidance of [Union] 948a(2). subsequently styled § Tr. 843- Lieber Code. See fined in the 44, M.C.A. Lieber, supra See nn. Francis Instructions the Govern- 916-17. also 23, 24, 53. ment Armies States (Lieber's Instmctions) (1898). On Field 948a(7) April § President Abraham Lincoln Compare 58. 2009 M.C.A. 948a(l), approved publica- supra n. 24. Ham- G.O. and directed M.C.A. See also its dan, tion, F.Supp.2d n. WL at 1277 “for the information of all concerned.” (citations omitted) (ex- represented at *18 n. Id. The Lieber Code one of changed plaining why Congress comprehensive the term war. first lists of the laws of Rosen, ("The "unprivileged from “unlawful combatant” n. at 695 Lieber Code enemy belligerent”). established the basis for later international conventions on the laws of war Brussels 1907.”) Hague Army was the author Gener- 1874 and at The in 1899 and Lieber lead (citation omitted). (1863) (G.O. 100), *41 was Orders 100 which possession. parties] their I ---- particularly [guerrilla carry war in on petty your on request questions. (guerrilla) chiefly by raids, views these war extor- destruction, tion, massacre, ... Lieber, Consid- Francis Guerrilla Parties generally give [prisoners] quarter[.] no and Us- ered with to the Laws Reference Parties) (Lieber, ages War Guerrilla 7-8,18-19. Id. at (1862). See also James G. Gar- Forward Nor be can it maintained in faith good Revisited, ner, 27 Mil. Order 100 General ... that ... an prowler (now armed — 1, 17 (citing L.Rev. letter MG bushwhacker) frequently called a shall to Aug. H.W. Halleck Francis Lieber of protection be to the entitled of the law of 1863). response, Doctor Lieber ex- war, simply because tak- says he he has plained: in up gun country, en his defence of his position parties loosely of armed [t]he or ... because his chief a has issued army, to the main body attached of the proclamation by which he the upon calls altogether or it unconnected with has ... people to commit homicides which rarely up by been taken on the writers every civilized nation will mur- consider law of war----We find that self-consti- ders .... The most disciplined soldiers South, in destroy tuted the bands who on spot will execute the an armed and neigh- the cotton stored their own prowler murderous found he where bors, styled in journals are the of the no could have business as a peaceful South, as well North as those in the bushwhacker, citizen .... the so-called are, while in ac- they Guerillas: truth assassin, simple always is a and will thus cording common law—not war be soldier ... considered and citizen only, that of every society simply but — They unite fourfold character of robbers, against every per- armed whom spy, brigand, assassin and bound, son permitted, duty is is rebel, cannot ... expect to be treat- means dispos- use all of defense at his enemy regular ed as a fair of a war. al.] They know what a career hazardous Lieber, Guerrilla Parties at 5-6. they upon they up enter when take universally is [I]t understood this arms, that, reversed, were the case ... country guerrilla party means they surely grant not privi- would men, irregular an carry- band of armed lege of who regular persons warfare to ing irregular war, being on not able should rise in their thus rear. according guerril- their character aas Id. at 20-21. party, carry la on what terms the law How far rules which have formed them- war. The regular irregularity selves in the course of time between guerrilla party origin, consists in for its might relaxed, belligerents be with safe- it is either self-constituted or constituted ty, certain, army, ... So much is that no individual, by the call of a not single war, society, engaged no any more according to general levy, law society peace, than a can unpun- allow conscription, volunteering ... and it assassination, robbery, ished and devas- as to irregular permanency tation, it- deepest injury without the band, may which be dismissed and called self consequences!.] and disastrous again together time.... Guerrilla Id. at 21-22. parties do not enjoy the full benefit reasoning repeated Attorney This of the laws of war.... The reasons are, they opinion this General annoying Speed’s regarding are trial insidious, charged commission of those
1186 of war entitling prisoner Lin- them to status President to assassinate conspiring capture. of: is upon therefore] that the act Court [The He concluded coln. guerrillas to hold that such were obliged banditti, jayhawkers, with unit[ing] who, upon capture, could ma- unauthorized or other guerillas, francs-tireurs subjected penalty. the to the death Con- high a offence be is rauders war; complete is at- responsibility the offence no criminal sequently, of laws joined. organized is the band to the List because of when taches defendant by such band committed The atrocities partisans captured the execution of offence, but the make not constitute do Yugoslavia Greece. banditti why such are reasons
the
T.W.C.,
at
see
id.
supra
11
n.
also
war.
by the laws of
denounced
529-30,
necessity
1244
(discussing
at
the Constitution-
Opinion
Speed,
James
requirements
of
with
four
compliance
the
Try and Exe-
Military to
the
al Power
Convention,
art.
Hague
of
Annex to the
the
President,
Op.
11
Assassins
the
cute the
948a(2),
of
31);
supra
n.
2006
p.
at
M.C.A.
(1865).
297, 312
Atty. Gen.
combatant).
(requirements for lawful
53
II,
Interna-
War
before
Post World
that List’s deputy,
The Tribunal also held
Nuremburg,
Military Tribunal at
tional
Kuntze,
responsi-
had “no criminal
Walter
French Prosecutor and
the Chief
both
killing
captured
of
bility ... because of the
French Prosecutor acknowl-
Deputy Chief
forces, they
of the resistance
be-
members
belligerents
unlawful
edged
punish-
subject to such
ing francs-tireurs
could
condemned to
be
at
ment.” Id.
1276.
“francs-tireurs
Similarly,
occupying pow-
death[.]”60
(c)
Army
1956 Manuals
1914 and
U.S.
Germany under
trials in
conducted
ers
Depart-
In
the United States War
No.
known
authority of Control Council
Orders No. 100
“replaced
ment
General
Nuremberg Military Tribunals
as the
Army
Field Manual entitled ‘The
with
(NMT)
tribu-
considered international
which, updated,
Land
]
[Rules
administering
law.
international
nals
Warfare’
purрose
still
force.”61 The
America v. Wilhelm
States
“The United
provide
Manual
authoritative
was
List,
agreed with
et al.” a U.S. Tribunal
List,
on
military personnel
custom-
guidance
of the defendant
the contention
treaty
con-
ary
applicable
Forces Command-
law
Armed
former German
land. 1914 Manual at
er Southeast:
duct of warfare on
¶¶ 369, 371,
3, 11-13. The
Manual
which
guerrilla fighters he
that the
as war
belligerents
permit
crimi-
prosecution
not lawful
contended were
(Chief
T.M.W.C.,
at 405
Military
Council Law
n.
supra
Tribunals
Control
60. 5
under
Menthon,
volumes,
published
M. Francois de
French
are
Prosecutor
No. 10 as 15
sure,
IMT,
Republic,
T.W.C.,
"To be
stated
and are known as
abbreviated
rarely complied
number,
of the Resistance
members
case
name
"The Green Series.” The
Hague
conditions laid down
with the
name,
defendant, popular
lead
volume
Conventions,
qualify them to
which would
be
85, http:/lwww.loc.govlrrl
are listed
n.
infra
forces;
regular
they
considered as
combat
frdJMilitary-Law/NTs-war-criminals.html.
could be sentenced
death as francs-tireurs
they
But
were assassinated
and executed.
Noone,
Gregory
History
P.
and Evolu-
The
cases,
having
after
trial in most
often
without
II,
World
the Law War Prior to
War
tion of
tortured.);
terribly
11 Trials
War
been
(2000) (citing
L.Rev.
Tel-
47 Naval
Military
Nuernberg
Tribu-
Criminals Before
Taylor,
Nuremburg
ford
Anatomy
10, Control
Law No.
nals under
Council
(1992);
Trials: A Personal Memoir (1951).
edition of Tri-
An abbreviated official
42).
FM
n.
Nuernberg
War Criminals
als
Before
*43
33-34,
nals of
engage
individuals who
hostilities U.S. at
369. Hostilities committed indi- The Law of (1956 27-10). Land viduals not of armed FM The forces.—Persons Warfare ¶¶ 1956 FM 27-10 up who take arms and commit 502-504 listed grave hostilities breaches of having complied without with the the Geneva condi- Conventions and a prescribed representative securing tions for the list of privi- other war At crimes. ” ¶ leges are, of belligerents, captured when 499 it defines “the term ‘war crime’ by enemy, punishment liable to for be “the expression technical for a violation such hostile acts as war criminals. of by the law of war any person or per- sons, military or Highway Every civilian. violation pirates 371. robbers and of the law of Men, men, war is a war crime.” or Like squads of who com- war.— Manual, the 1914 hostilities, mit the 1956 FM by per- whether 27-10 fighting, or prosecution mits inroads for destruction or unlawful combatants or plunder, or kind, unprivileged belligerents raids of as war without commis- criminals sion, stating: being part without and portion of organized army, hostile and without 80. Individuals Not of Armed Forces
sharing war, continuously in the but who Engage Persons, Who in Hostilities do so with intermitting returns to their such gue[]rillas as partisans, who avocations, homes and or with the occa- up take arms and commit hostile acts assumption sional of the semblance of without having complied with the condi- peaceful pursuits, divesting themselves prescribed by tions the laws of war for of the appearance character or of sol- (see [GCIII], recognition belligerents as men, men, diers —such or squads of are 4; herein), par. are, art. cap- when not privileged [lawful combatants or bel- injured tured party, not entitled and, ligerents], therefore, captured, if prisoners be treated as of war and are not entitled to privileges pris- may be tried and sentenced to execution war, oners of but shall be treated sum- imprisonment. or marily highway as robbers and pirates, Individuals Not of Armed Forces [citing] 82[, G.O. art. n. Who Commit Hostile Acts Persons 59.] who, having without complied with the prowlers. 373. Armed prowl- —Armed prescribed by conditions the laws of war ers, by they whatever names may be (see for recognition belligerents called, or persons enemy’s of the territo- [GCIII], 4; herein), par. art. commit ry, who steal within the lines of the hostile acts about or behind the lines of army purpose hostile for the robbing, enemy are not to be treated as killing, roads, or of destroying bridges, prisoners may of war and be tried and canals, robbing or of destroying sentenced to execution or imprisonment. mail, or of cutting the telegraph include, to, Such acts but are not limited wires, are not privileges entitled to the sabotage, destruction of communications prisoner of war. [citing] G.O. facilities, intentional misleading 84[, art. supra n. 59.] troops by guides, prisoners liberation of war, Supreme and other falling Court cited the acts not within 1914 and 1940 Rules of Land Warfare as Articles 104 and 106 of the Uniform Department’s War guidance to the Code of Military Justice and Article 29 Army Quirin, on war crimes. Hague See Regulations. legitimate ly entitles the soldier provides pun- 1956 Field Manual beneficia- protections, its real illegal [GCIII]’s hos- assist of those who
ishment *44 ¶ the up civilians make ries are the who persons culpable that stating in 82 tilities ¶¶ of our societies.... mass attempted, have “who under 80 and 81 committed, or conspired commit hostile [*] [*] [*] subject ex- are acts belligerent or is, all, negation above the of Terrorism of because the dan- of death penalty treme negation specifically, law. More it is the pen- conduct. in their Lesser inherent ger princi- of fundamental humanitarian the however, imposed.” be may, alties law of conflict. ples of the armed proscribes humanitarian law Whereas (d) Terrorists against civilians as directing attacks Adviser, U.S. De- Legal State A former it; such, promotes and where- terrorism addressed the status eloquently partment, bello purpose jus as a in fundamental privileged or lawful of terrorists vis-a-vis after a con- is the facilitation order following statement: in the belligerency flict, oppo- aim of is the the terrorism lack the belligerents Applica- who in Terrorists are clad violence.... site—chaos legitimately conflict, en- in those law of and entitlements of tion of the armed argu- No colorable bedrock of dis- particular principles combat. its gaged protections, forward that terror- put has tinction and fundamental ment been ultimately any special status humanitarian ends are entitled serves ists governing rules interna- armed conflict—and reinforces the the under law times, at all even prisoners tional behavior certainly the status not to group, As a terror- war.62 under [GCIII]. war and conduct them- willingly define
ists (e) Conclusion coverage of Article the selves outside They are mem- neither [GCIII]: of the The of an AUEC 2006 M.C.A. definition forces of a of the armed State un- meaning bers the of an is consistent with “regular” of a nor Party members the common belligerent under privileged generously if consid- In armed force. Even n. 58. law of conflict. See armed sense, ered, “irregulars” in the broadest any support meaningful the absence of sort, willfully mali- they of some or other proposition appellant the distinguish fail themselves ciously Qaeda group of an armed like members impliedly as population, from the civilian privileged belligerents qualify as lawful laid by conflict, the four conditions required upon of armed under the law Hague Regulations down conduct and charged consideration 4(A)(2) conclude, repeated record, in Article beyond we the entire also fact, core aspect doubt, appellant [GCIII]. reasonable perpetrators is its fail on terrorism that M.C.A. an as defined in the 2006 AUEC basis conduct systematic and willful in the Context of and Asso- Conduct operations in accordance with “their an Armed Conflict— ciated with war,” required laws and customs of Element Common 4(A)(2)(d).... Article M.C.A., as imposes implemented 4 ... a distinction be- The 2006 [A]rticle M.M.C., between requires a nexus illegitimate legitimate tween conflict conduct and an armed express- charged Article 4 combatant —and while IV; Taft, Fea- After Salient on Armed Conflict Some William H. Current Pressures 9/11: (2003). tures, L. J. Inti. Law: Law of 28 Yale International Humanitarian element, This punishable. performs to be nexus This sometimes to as referred determin- “contextual element”64 “cha- important narrowing function in peaux,” central to determining charged acts of consti- wheth- ing which terrorism punishable er conduct is war law of punishable a law of tute conduct such law, treaty tribunal. Consistent with cus- military commission, effectively war while tom, practice, determination excluding jurisdiction from their isolated whether the hostilities in satisfy issue this acts of within the sporadic violence not objective element is general- nature and of an context armed conflict. The 2007 *45 ly intensity relate the to and duration of element, includes this M.M.C. nexus as an those hostilities.66 requiring proof beyond a doubt reasonable case, that the offense occurred in context of the In specification this each states an armed conflict.63 that all in conduct occurred loea- “various Charge defining 63. See also sheet. M.C.A. question The 2006 the the articles crimes. The crimes, jurisdiction persons subject over to trial limits example, arises in war to military “engaged commission to in AUECs whether an offense was committed an in conflict, purposefully hostilities or who has materi- and armed and whether that armed con- 948a(l)(i) ally supported § hostilities.'' and flict in was international non-international 23, 24, added). 948b(a)(emphasis See nn. added). character.”)(emphasis M.M.C., ¶ 6(a)(25). 53. also The See Part IV scope conspiracy of the and of- solicitation APII, ("This supra 66. See n. art. 1.1 Proto- object are limited fenses to certain offenses develops supplements and col which Article 3 objects listed in the 2006 M.C.A.The seven of common to the Geneva of 12 Conventions conspiracy, Specification Charge in August existing modifying without its solicitation, I, Specification and in the application, apply conditions of shall to all II, punisha- Charge are defined as an offense armed which conflicts are not covered military ble commission in place and [API] Article 1 of which take in the 950v(b)(l), 950v(b)(3), 950v(b)(2), §§ M.C.A. territory High Contracting Party of a between 950v(b)(15), 950v(b)(16), 950v(b)(24), and its armed forces dissident armed forces 950v(b)(25). pp. See 98. infra which, organized groups or other armed un- command, responsible der con- exercise such Nerlich, 64. Volker Core Crimes and Transna- part territory trol over a of its as to enable Corporations, Business tional 8 J. Inti. L. carry them to out sustained and concerted Werle, (2010)(citing G. Crim. Justice implement operations to Pro- this (2d Principles Law International Criminal tocol.") added) ("This (emphasis and art 1.2. ed., Press, Hague: 2009), marginal Asser apply Protocol not shall situations of inter- references) seq., et no. 1001 with further riots, tensions, nal disturbances such as ("The decisive factor is not the status sporadic isolated acts of violence perpetrator, question but whether the act in nature, being a similar other acts of as not in the an armed was committed context of conflicts.”); see armed also Rome Statute of If, however, conflict. the contextual element ICC, 8(2)(f) ("Para- supra nn. art. present, question is not the conduct will 2(e) graph [lists serious violations of noting to a not amount war crime" and "the customs] laws and "within the established penultimate element of each the war ap- of international law" framework that are Crimes, crimes ICC’s Elements of plicable "to armed conflicts not of an interna- provides place which took '[t]he conduct applicable] tional and ... character not in the context of and was with an associated internal situations of and ten- disturbances international armed con- armed conflict/an riots, sions, sporadic such as isolated acts ”). flict not of an international character.' other violence or acts of a nature. similar Carden, Nadya applies place It armed 65. Leila Sadat and conflicts that take S. Richard territory protract- of a State when The New International Criminal Court: An there is Revolution, Uneasy governmental ed 88 Geo. L.J. armed conflict between au- ("Jurisdictional organized groups of the of- elements thorities and armed or be- generally chapeaux are groups."). fenses found in the tween such Pakistan, you facts consider and else- and circumstances Afghanistan, tions challenged not Appellant has to the of armed con- where.” relevant existence conflict of an armed between existence flict should whether consider [Y]ou trial Qaeda, al either at States and during charged offense] occurred [the Hamdan, the Supreme appeal. on conflict as de- period armed found an armed conflict exist with Court above; performed fined was intended or by applicable Qaeda, one con- governed acted of or while the accused on behalf customary laws of war. ventional and to the authority party under the of a Hamdan 126 S.Ct. U.S. conflict; and it constitut- armed whether See There n. 48. is no dis- 2749. closely substantially relat- ed or was rising to the level of pute hostilities during the occurring ed to hostilities Afghanistan, Pak- armed conflict existed of the ac- armed conflict.... Conduct including and elsewhere the United istan at a from the cused that occurs distance September no later than States prior start of area of conflict or *46 After consideration of the record in this the can still be in the context conflict case, hostilities rising we conclude that and with conflict as associated armed on or the level armed conflict existed substantially long closely it was as beginning of February before 1999—the comprised to the hostilities that related charged Again, the mili- the timeframe. conflict. con- tary application commission’s this Tr. 844-45. proves textual element illustrative. military judge instructed the commission conclusion, requirement the members that: that conduct “in the charged the occur respect
With
to each
offenses
context
an armed
of and associated with
Specification of
objects
listed as
conflict,”
in
defined
the M.M.C. and
charges,
government
prove
must
be-
the
are
military
judge
commission
at trial
yond a
doubt that the offense
reasonable
law
conflict
consistent with the
of armed
place
took
in the context
and was
fun
This
the 2006 M.C.A.
element
associated
armed conflict.
In de-
with
military
damental
to the
commission’s
termining
an armed conflict ex-
whether
jurisdiction
any
proper exercise of
over
isted
and al
between
United States
Moreover,
weigh
charged offense.
after
Qaeda
began, you
it
when
should
in
ing all the evidence
the record
duration,
length,
consider the
and inten-
recognizing that we did not see or hear
sity of the
par-
hostilities between the
convinced,
witnesses,
beyond
we are also
ties;
protracted
whether
there was
doubt, that the
States
reasonable
United
governmen-
armed violence
between
al
engaged
was
in an armed conflict with
organized
tal
armed
authorities
in
Qaeda
charged
timeframe
during
groups;
and when the
whether
in
Paki
Afghanistan,
“various locations
employ
States decided
the combat
stan, and elsewhere.”
capabilities of its armed forces to meet
threat;
Qaeda
al
per-
the number of
VIII. PROVIDING MATERIAL SUP-
side;
sons killed
on each
or wounded
TERRORISM, EX
PORT FOR
damage
amount of property
on each
FACTO, AND INSTRUC-
POST
side; statements of the leaders of either
ERROR
TIONAL
perceptions regard-
side
their
indicating
analysis
combining ap-
begin
We
our
ing the
existence of
armed conflict
challenges
charge
pellant’s three
including
presence
absence of
effect;
support for terrorism:
providing
declaration
that
other
material
(1)
providing
support
material
for ter-
disagree
appellant’s
Wе
with
pri
punishable by
rorism is not an offense
mary
charged
assertion that the
conduct
(2)
commission;
military
that this offense was not punishable by military commission
violated the Ex Post Facto Clause of the when he committed the offenses. See
Constitution;
Hamdan,
military
U.S.
that the
c. camp Qaeda training communi- sponsored cessing equipment an al and media near Mes Afghanistan located in then equipment for the benefit of cations Aynak; Usama Laden and other members of bin “bayat” fealty, or pledging d. Qaeda leadership. the al Laden, al bin Qaeda, leader of Usama com- charged The conduct shares some Qaeda, joining providing personal al and for monality with Hamdan’s conviction Qaeda; al support services offense, al Bah- same as both Hamdan and assisting preparing prep- and e. military-type training lul at an al received products, propaganda aration of various training camp, both Qaeda-sponsored Destruction of including the video “The Laden, pledged fealty to bin both were al COLE,” Destroyer U.S.S. the American members, Qaeda per- provided both Qaeda, for support al to solicit material support sonal to bin Laden al services personnel to recruit indoctrinate objectives. However, Qaeda’s goals organization objectives of al unlike more soldier- Hamdan’s traditional incite, solicit, Qaeda, and and advise (e.g. security like support physical armed terrorism; to commit persons transportation persons weap- secretary acting personal f. as and me- ons), staffing and stra- appellant provided secretary bin Laden dia of Usama tegic provid- and was support, acquitted Qaeda; of al support security. ing physical Atta, arranging for Muhammed also g. Masri, as Abu Rahman al known Abdul 2. The M.C.A. and M.M.C. Jarrah, Ziad al known Abu also as The 2006 M.C.A.’s definition “Provid- Lubnani, pledge fealty al Qa’qa ing Support Terrorism” in- Material Laden; “bayat” to Usama bin cludes of con- principal two formulations preparing propaganda h. declara- first, duct comprising offense.68 styled wills martyr tions of Mu- *48 here, not alleged “providfing] includes ma- Atta al hammed and Ziad Jarrah for, carrying terial ... support or out acts of preparation for the terrorism an act of terrorism.” 2006 M.C.A. by the said Muhammed perpetrated 950v(b)(25)(A). second, § While Atta, Ziad al and others at Jarrah vari- charged here, is that accused “inten- ous locations in the United States on or tionally provide[d] support material re- 11, 2001; September organization an sources to international Laden, i. at the direction of Usama bin engaged in hostilities against United researching the economic effect of ” States.... Id. These two formulations attacks on the September Unit- legally Accordingly, are distinct. our anal- States, providing ed result Laden; ysis holding pertain only to the sec- that research to bin Usama ond. [and] port provides Any person preparation ing terrorism organization engaged [2] 2006 M.C.A. who or or resources to an international intending material intentionally provides (as for, subject set § or in forth in support 950v(b)(25)(A) to this in hostilities they carrying paragraph or are to be used in chapter resources, out, material ("Offense.— against who (24)), terrorist know- act of sup- [1] or mission forth), dan material phasis has IV, engaged was convicted ¶ 6(25)b; shall States, added). under this support for or be knowing Hamdan, engages WL punished See chapter may terrorism). also 2007 both in terrorism as types such at *4-*5 F.Supp.2d M.M.C., direct.”)(em- organization providing (as (Ham- so set com- Part ¶ IV, 6(25)bB,
The 2007 in Part M.M.C. service” Congress cast a wide net with particular lists providing respect elements for to the scope support and re support material for an subject international ter- sources of the statute. The Su organization rorist preme follows: Court acknowledged the broad (1) “scope” definition, of this in ruling B. on a provided The accused material recent challenge to the domestic support or resources to an law international source of course, this definition. organization terrorist “Of engaged in hostili- scope of States; ties the material-support may the United statute not be clear in every (2) application.” Holder The accused provide intended to v. Project, Humanitarian Law 561 U.S. support such material or resources to -, 2705, 2720, 177 130 S.Ct. L.Ed.2d 355 such an international terrorist organiza- tion; (2010).
(3) The accused knew that such or- case, In this Specification of Charge ganization engaged has or engages III appellant states provided both material terrorism; and support and primary resources. The re- place The conduct took in the con- source charged was that provided he him- text of and was associated with an Qaeda membеr; self to al as a consistent armed conflict. with the explicit recognition statute’s “personnel [including] oneself’ as material Support a. Material or Resources support or resources. See 2006 M.C.A. 950v(b)25(A) The statute defines “material support (quoted supra or at nn. 68- ).69, “any, resources” as property, tangible specification or states he traveled intangible, [any] Afghanistan join Qaeda, service[.]”69 This defi al met with nition includes a prop Qaeda leader, nonexclusive list of an al military- underwent erty and services constituting material type training at an Qaeda sponsored al support or resources including “expert camp, ad met with and pledged personal loy- assistance, vice or ... alty Laden, communications joined Qae- bin and then (1 equipment, ¶¶ ... personnel [and] or more da. The Specification of III Charge a- oneself) may individuals who be or include d.
[ n ]» Appellant charged provid- was also By defining “material support or re- ing services in support direct of bin Laden “any, property sources” as [any] Qaeda and al including: preparation of *49 950v(b)(25)(B) terials; ("[T]he § (2) 69. See 2006 M.C.A. "training” the term means in- support term ‘material or resources' has the teaching designed impart struction or 2339A(b) meaning given skill, that term in section specific opposed general as knowl- 18.”). 2339A(b) § of tide Tide 18 U.S.C. (3) edge; "expert and the term advice or reads: assistance” means advice or assistance de- scientific, support the term "material spe- or re- rived from technical or other any property, tangible sources” any means knowledge.). interpret cialized We the lan- service, property, tangible intangible, or guage or "any property, tangible intangible, or including currency service,” monetary or instru- "any, property or to mean ... or securities, ments or financial financial [any] ser- service.” vices, lodging, training, expert advice or assistance, safehouses, interpret 70. We "including” the word false documentation identification, "includ[ing] or mean but equip- communications not limited See to[J" ment, facilities, substances, 101(f)(4) ("Rules weapons, § lethal 10 U.S.C. of Construc- (1 explosives, personnel tion” "In or more individuals this title ... ‘includes’ means ‘in- oneself), may ”). who be or include and cludes but is not trans- limited to’ See also 2008 MCM, portation, except religious medicine or ma- R.C.M. 103 Discussion. conduct, be shall government Qae- for al intended products propaganda or more results to one training, if death punished, and indoctrination recruiting da terrorism; victims, such other by death or to commit persons inciting and secretary for un- media commission as a acting personal punishment loyal- and, pledges direct, if Laden, facilitating the may chapter bin this der propa- preparing Laden and ty to bin of the vic- result to does not death Martyr styled as Wills declarations ganda than tims, other punishment, such 11, 2001 hi- September suspected for two death, military commission under aas researching the economic jaekers/pilots, may direct. chapter this on the United attacks of those effect “terrorism,” incorpo- is This definition results to bin providing the States support material “providing into rated maintaining Laden, operating and terrorism,” 2006 M.C.A. (quoting n. 68 see and media equipment processing data 950v(b)(25)(A)), may appropriately be benefit equipment for the communications underlying offense. as the characterized Qaeda leaders. Laden and other of bin addition, con- specifications ¶¶ e-j. III Charge Specification The “ter- charges cite and solicitation spiracy are provided he Although the services Accordingly, object offense. as an rorism” statute, the explicitly not identified as that offense “terrorism” we will discuss examples are statutorily enumerated interna- in the 2006 M.C.A. and is defined charged list. The services non-exhaustive law. tional statutorily de- scope fall within com- definition is more The 2006 M.C.A. expert advice or to include fined services Article 3 of the than Common prehensive assistance. API, Conventions, APII. Al Geneva record, includ review of the After and kill- targeting “intentional prohibit the III, Charge Specification ing and “acts or protected persons” ing of parties, we conclude pleadings of purpose of primary of violence the threats himself as a mem provision of appellant’s civil- among terror spread is to which to al Qaeda provision and his of al ber In addi- supra n. 39. population.” ian See constitute “mate Qaeda of various services tion, requires the Govern- the 2006 M.C.A. resources,” as those terms support rial in a accused did so prove “[t]he ment in the 2006 M.C.A. are defined or affect calculated to influence manner pop- government or civilian the conduct b. Terrorism —defined coercion, by intimidation or ulation par- of “terrorism” warrants The offense conduct.” against government retaliate it invoked ticularized discussion as ¶6(24^(2). IV, 2007 M.M.C. Part charged offense. The 2006 M.C.A. each an additional inclusion of 2006 M.C.A.’s 950v(b)(24) from com- prohibits AUECs actually narrows the conduct sub- element mitting stating: terrorism liability, criminal ject to individual *50 Any subject to this person Terrorism. — the proof of on places an additional burden intentionally kills or inflicts chapter who Government. pro- bodily harm on one or more great is also con- 2006 M.C.A. definition The intentionally engages persons, tected comprehensive most defi- sistent with the in act that evinces a wanton disre- an by international nition of “terrorism” life, in a manner calcu- gard for human 11, 2001. September on treaty extant affect the conduct lated to influence or Financing Terror- 1999 Specifically, the population or civilian government of prohibition in coercion, included its ism Convention intimidation or or to retaliate
1195 2.1, meeting the definition of ter- Article of conduct International Convention for the Suppression Financing the Ter- rorism: of of (Dec. (1999 9,1999) rorism Financing Ter- Any person commits offence within Convention), 197, rorism 2178 U.N.T.S. 39 if meaning the of this Convention 270, I.L.M. G.A. Res. (emphasis 54/109 means, by any directly or person indi added). rectly, unlawfully willfully, provides similarity in these definitions does or collects funds with the intention that not suggest universally that a accepted definition of they terrorism existed at the time knowledge should be used or the appellant’s conduct, of charged or that used, they are to be in full or in such a currently definition exists in inter- (a) part, carry in order to out: An act national law. A more accurate description which constitutes an offence within the of treaty addressing the law international scope of and as defined one of the Long-stand- terrorism would be ad hoc. annex;[71] (b) treaties listed the ing efforts to define “terrorism” have been Any other act intended to cause death or subject the of persistent political dispute, civilian, bodily injury serious to a or to primarily associated with national libera- person taking other not an active movements, inapplicable tion concerns part hostilities a situation of Qaeda’s attacks on the United States. conflict, armed purpose when the of such Schmid, See Alex Terrorism on Trial: act, context, by its nature or is to intimi Problem, Terrorism —The Definitional (2004). Case W. Res. Inti. L. J. population, compel date or to govern organization ment or an international At least 12 antiterrorism treaties or con- do doing any or to abstain act. predate appellant’s ventions offenses.72 from 474; (7) 71. The annex the nine Physical lists treaties at n. U.N.T.S. the Convention on infra 72, 26, (Oct. 1979), except Marking Convention the on Plas- Protection Nuclear Material of of 1419, 1987; (8) Explosives Purpose tic 18 I.L.M. 1456 U.N.T.S. Inter- the Detection for of (Mar. 1, 726; 1991), Against taking national Convention the Tokyo Hos- 30 I.L.M. Cоnven- of 17, (Dec. 1979), 34/146, tages G.A. Res. U.N. tion on and Certain Other Acts Com- Offenses A/34/46, 205; (9) Doc. 1316 U.N.T.S. Conven- Aircraft, Sept. mitted on Board 2941, tion on the Prevention Punishment U.S.T. 704 U.N.T.S. 219. of against Internationally Crimes Per- Protected 72. Those 12 antiterrorism treaties include: sons, 14, (Dec. including Diplomatic Agents (1) Suppres- International the Convention 1973), 1975, 167; for 28 U.S.T. 1035 U.N.T.S. (Dec. 9, Financing sion the Terrorism (10) of of Suppression Convention the Unlaw- for of 1999) (1999 Convention), Financing Terrorism Against Safety Acts Civil Aviation ful 197, 270, 2178 U.N.T.S. 39 I.L.M. G.A. Res. 23, 565, 1971), (Sept. 24 U.S.T. 974 U.N.T.S. 54/109; (2) International Convention 177; (11) Suppression for Convention for 15, (Dec. Suppression Bombings Terrorist 16, (Dec. 1970), Seizure Unlawful of Aircraft 1997) (1997 Convention), Bombing 37 I.L.M. 105; (12) 22 U.S.T. 860 U.N.T.S. Con- 249; (3) Marking Convention on the Plastic vention on and Certain Other Acts Offenses (Mar. Explosives Purpose Detection 14, 1963), (Sept. Committed on Board for Aircraft 726; 1991), (4) 30 I.L.M. Protocol 20 U.S.T. 704 U.N.T.S. 219. See Ham- for Suppression Against Acts dan, F.Supp.2d WL at 1282 n. of Unlawful Safe- ty Fixed Located on the Continen- (listing 2923945 at *20 n. 59 dates entered Platforms (Mar. 1988), tal UN, 27 I.L.M. into force for the ratified or accessed Shelf 304; (5) Suppres- U.S., U.S., U.N.T.S. Convention entered into force for the for Against Safety sion Acts signatories parties). number of See also of Unlawful (Mar. 10, 1988), Navigation Maritime Tackaberry, Up Karin G. Time to Stand 221; I.L.M. 1678 U.N.T.S. Protocol Be Counted: The Need the United Nations *51 Terrorism, Suppression Acts Army Vio- to Control International The for of Unlawful of 1, Airports 2007) Serving lence at Lawyer (July (discussing International Civil 7-14 24, (Feb. 1988), 627, Aviation 27 I.L.M. relevance and limitations of additional terror- principles and of the United purposes as a crime of interna- Describing terrorism Nations, a may pose which threat to each of the treaties significance, tional security, jeop- peace to criminalize various international and oblige parties States, friendly among in their domestic crimi- relations ardize facets of terrorism in cooperate preven- cooperation and aim nal codes and to hinder international acts of terrorism. rights, of of human fun- punishment tion and at the destruction of American States Con- Organization The freedoms and the democratic damental and Punish the Acts society; vention to Prevent bases of of Taking the Form Crimes Terrorism acts intended or calculated 3. Criminal of and Related Extortion Against Persons gener- a of terror in the provoke to state Significance, 27 International that are public, group persons particu- of (Feb. 2, 1971), 3949; T.I.A.S. 8413 U.S.T. in persons political purposes lar for are 1976, Oct. ratified the United States unjustifiable, whatever any circumstance provides: example, Article for political, philo- the considerations of a among cooperate racial, to them- ethnic, ideological, [UJndertake reli- sophical, all the measures that by taking selves may gious other nature that be effective, they consider under their may justify invoked to them[.]73 laws, especially those estab- and own Security adopted a Council convention, prevent and lished in this on the response resolution attacks terrorism, especially kid- punish acts of Kenya embassies in and United States’ murder, and other assaults napping, Tanzania, specifi- which are named in the physical integrity life or against the “[sjtrongly charge, by cation of the con- whom the state has the persons those demn[ing] the terrorist bomb attacks duty according to international law to Dar-es-Salaam, Nairobi, Kenya and Tan- give special protection[.] hun- August zania on 7 1998which claimed occurred the con- These conventions lives, injured dreds of innocent thousands debates in the text of numerous United massive destruction people and caused Nations about the causes of international Doc. property.” S.C. Res. U.N. ¶ suppress 1998) and ways terrorism and elimi- 1. In the (Aug. S/RES/1189 Assembly A terrorism. 1994 General nate Security expressed year, same Council inter- Resolution on measures to eliminate continuing its concern about “the use of national terrorism declared that: Afghan territory, especially areas con- Taliban, sheltering
1. The States Members trolled for the unequiv- planning their solemnly training Nations reaffirm of terrorists and the acts, acts, of all methods reiterating ocal condemnation of terrorist terrorism, as criminal practices suppression of international terrorism is unjustifiable, wherever for the maintenance of interna- essential ...; whomever committed peace security,” tional and demanded Acts, sanctuary practices stop providing ter- “that the Taliban methods and international terrorists grave training rorism constitute a violation of the treaties, subsequent agree- annually in UN resolutions.” Re- ism-related conventions and ments). Young, Defining uven Terrorism: Evolu- Legal Concept Inter- tion Terrorism as 73. Declaration on Measures to Eliminate In- national Law and Its on Influence Definitions (Elimination ternational Terrorism Comp. Legislation, 29 B.C. Inti. in Domestic Declaration), 49/60, G.A. Res. U.N. Doc. (2006) (citations L.Rev. 40 and n. 93 omit- ¶¶ I, (Dec. 1994) at Pt. 1-3. A/RES/49/60 ted). "The Declaration was endorsed Elimination
1197
1214,
organizations.”
ample
and their
S.C. Res.
There is
evidence that an
(Dec.
1998)
8,
Doc.
at
“intent” or “manner calculated to
U.N.
influence
S/RES/1214
¶
(emphasis
original).
preamble
government
or affect the conduct of
coercion,”
52,
intimidation or
p.
now
the Islamic
Organization
The
Confer-
custom,
constitutes
as evi
“international
(OIC)
on September
ence
was established
general practice accepted
dence of a
1969,
25,
currently
member
has 57
general
law” or at minimum “the
principles
population
countries with a total
of 1.5
recognized by
of law
civilized nations.”
people.
webpage
billion
See OIC
on UN
Statute of the International Court of Jus
website, http:lhMww.oicun.org/2l23/. The
38(1).
tice art.
This conclusion is based
Combating
OIC Convention on
Interna-
upon
implicit acceptance
of the 1999
tional Terrorism defines “Terrorism” as:
Financing Terrorism Convention’s defini
any act of violence or threat
thereof
signed by
tion
“terrorism” as it was
at
notwithstanding its motives or intentions
11,
least
September
39 nations before
perpetrated
carry
out an individual or
2001,
into
in April
entered
force
plan
criminal
aim
collective
with the
signatories
and now has
and 174 par
terrorizing people
threatening
or
Hamdan,
F.Supp.2d
ties. See
at 1282
lives,
imperiling
harm them or
their
hon-
(list
59,
n.
2923945 at *20 n. 59
or, freedoms,
WL
security
rights
or
or ex-
ing
signatories
parties).
number of
posing
any facility
or
environment or
addition,
requirement
routinely
this
has
public
private property
or
to hazards or
them,
appeared
emanating
draft definitions
seizing
occupying
endanger-
or
or
resource,
original
from the United Nations since the
ing
national
or international
2001,
facilities,
working
threatening
stability,
group report
or
November
varying
and in
integrity, political unity
territorial
or
forms
domestic counter-
2006,
sovereignty
independent
States.74
terrorism laws.75 From 2001 to
Combating
org/terrorism/workgroupsix.shtml.
74. OIC Convention on
Internation-
See also Se-
Faso,
1566,
(Ouagadougou,
curity
al Terrorism
Burkina
Council Res.
U.N. Doc. S/RES/
¶
1,
I,
8,
acts,
1999)
1.2,
(Oct.
2004)
("criminal
July
pt.
http://www.
art.
civilians,
including against
oicun.org/71381.
League
committed with
See also The
of Arab
States,
bodily
the intent
Suppression
to cause death or serious
Arab Convention
for
Terrorism,
22,
1,
(Cairo,
1998),
injury
provoke
purpose
... with the
a state
Apr.
pt.
art.
terrorism);
general public
group
of terror in the
or in a
(using
1.2
the same definition for
Hamdan,
persons
particular persons,
or
intimidate a
F.Supp.2d
at 1284 and n.
population
compel
a Government or an
(citing
by using weapons ... or other international to combat terrorism after ... of a nature substances hazardous September Sliedregt, 2001. Elies van cause, cause, ... likely or as is to European Approaches Fighting Terror of, to, injuries any person death or or ism, Comp. 20 Duke J. Inti. L. of, persons [causing .... the] loss or (Jan. (2010); Report SCOR at 4-6 S/2002/8 to, of, damage property or destruction 2002). Law, Cossiga enacted on disruption any or or supplies services February punished partic- “[mere community, essential to the life of the ... an the aim ipation ‘association with in] threatening] injure to kill [and or such of and of subversion of the dem- terrorism person compel in order to the Govern- ocratic order’ and ‘attack for subversive or ” any person ment or other to do [or purposes’ necessity terrorist without the doing any from act. actual in a violent act.78 participation refrain] Dunham, Eliminating States: A 78. Matthew E. the Do- mestic Terrorist Threat in the United substances, or other or such fire-arms strategy uti- counter-terrorism Japan’s Prevention in such a manner as weapons Activities lethal lizes the Subversive variety cause, terrorism- Act, the death prohibits likely which to cause or be activities, pre- including causing, injury persons related or person of or aiding in internal dis- plotting, and paring, of, on damage property to or destruction induce, aid, turbance; well as actions to scale, with the large ... or threatens attempt to induce for- plot, preparation in order to public use of force servants *55 eign incursion.79 discharging from their prevent them (b) duties; commits a sched- lawful or Anti-Terrorism adopted the
Pakistan
(1997 ATA)
offence,
be,
of which will
to
terror-
uled
the effect
prevent
Act of 1997
be,
terror,
at 6
or
Report
likely
SCOR
or be
to
to strike
ist acts.
S/2001/1310
2002).
(Jan.
2001,
10,
“In
August
insecurity in
create a sense of fear and
to en-
was further amended
ATA]
...
any
people;
[1997
...
section of the
Act,
the amended
large
scope.
its
Under
“terrorism” as “vio-
Russian law defines
punishable
is a
offence
abet-
terrorism
of violence
in-
lence or the threat
terrorism,
including membership of
ting
organizations,
or
and also
dividuals
sup-
groups and recruitment
terrorist
(damaging) of or threat to de-
destruction
groups,
for such
is an offence.” Id.
port
stroy (damage) property and other mate-
11(A)
11(X)
ATA
to
the 1997
[of
“Sections
objects.”
rial
Russian Federation Federal
in-
prohibit organizations
amended]
1998).
130-FZ,
25,
(July
art. 3
Law No.
in
activities and
mem-
volved
terrorist
bars
includes,
example,
to
Terrorism
support
organiza-
to such
bership and
life, significant
“threaten
cause loss
Hamdan,
tions.” Id. at 8. See also
socially
or other
dan-
damage
property,
F.Supp.2d at
Spanish law indicates 2004). “Attempt, preparation conspira- Code, art. Spanish is defined Criminal the, terrorism’, cy to commit terrorist crimes or failure to “of ‘On crimes 571-79 Organic punishable.” Act on the Re- disclose such crimes is also and also (LO form of the Criminal Code Id. 10/1995 1995).”80 23 November Under Article Act of 2000 of Terrorism the United Code terrorists Spanish Criminal Kingdom means states “terrorism” ‘belonging, act- are defined “as those who if “the use or threat of action” such action of, collaborating ing the service “(a) against per- involves serious violence groups, organizations armed or bodies (b) son, damage proper- involves serious objective the constitu-
whose is to subvert (c) life, ty, endangers person[’]s other *56 seriously public tional order or alter than person committing that of the in Arti- peace’, commit the acts described (d) action, a serious risk to the creates includes “attacks on cle 346.” This article safety public health or of the or a section buildings, transportation or communica- ...” Terrorism Act ch. public using explosive tions infrastructure de- 1(2) 2000). 1(1), § pt. (July http:// vices,” or Article 351 “arson caus- under www.legislation.gov.uk/ukpga/2000/11/ injury According ing risk of or death.... Such use or threat must contents/enacted. articles, to these a crime of terrorism is advancing politi- purpose be “for the ‘intended to subvert the con- [one is] cal, cause,” religious ideological or or “de- seriously public stitutional order or alter or in- signed to influence the Government ” peace.’ public,” timidate a section of the and be 11, 2001, September Before “Swedish purpose advancing po- “made for the legislation ... contained no reference to litical, Id. religious ideological or cause.” specific criminal offences for terrorist acts. 1(1). § Report See also SCOR committing Persons terrorist acts were (Dec. 2001). at 10 S/2001/1232 in general provisions under the punished of ter The 2006 M.C.A. definition Report Penal SCOR Code.” in than prohibitions rorism is narrower its (Dec. 2001). at 4 To com- S/2001/1233 language of Article 3 and Common ply European with the Framework Deci- APII, with international norms consistent Terrorism, Combating on Sweden en- sion charged time of the con applicable Responsibility Act acted the on Criminal duct, general principles with the consistent Crimes, which into for Terrorist entered nations, and recognized by of law civilized July This act defines a force on in violation of the com constitutes conduct designed to: terrorist act as one is Congress act mon law of armed conflict. 1) population Inflict serious fear on a or scope within the of its constitutional 2) ed Unduly compel a group population, authority defining in terrorism as an of public agency organi- or an international making and in fense in the 2006 M.C.A. to take or abstain from zation measures 3) by military com measures, punishable such conduct Seriously destroy funda- or constitutional, political, economi- mission. mental transnationalterrorism.eu/tekst/publications/ para Internacio-
80. Fundación
las Relaciones
Exterior,
Study:
Spain20case20study20(WP20620Del2012bj.pdf
y
Diálogo
el
Case
nales
quotations
in
for the facts
Spain, The Ethical Justness
Conter-Terror-
source
Measures,
27, 2008),
(Oct.
http://www.
paragraph.
this
ism
Laden,
Qaeda,
joining
al
al
B. Discussion
Usama bin
III,
Qaeda.”
Charge
Specification
in
the elements
the M.M.C.
Applying
¶¶ a-d;
¶
6(25)bB,
IV,
swpra p.
Part
Charge
III
Specification
facts
(4)
organization
knew that such
trial
the Government
reveals
that at
terrorism,”
engaged
engages
has
evidence,
competent
proved, by legal and
¶
IV,
6(25)bB(3),
Part
as estab
M.M.C.
beyond
appellant:
a reasonable doubt that
by Qaeda’s
lished
“violent attacks on the
(1) was an AUEC see 2006 M.C.A.
Nairobi,
[in]
United States’ embassies
22-24, 53;
948(a),
supra nn.
Salaam,
Kenya and Dar es
Tanzania [on]
(2) provided
support
material
7, 1998;
August
on the U.S.S. COLE
to an international
terrorist or
resources
Aden,
Yemen
[near]
[on] October
ganization engaged
hostilities
and; at
various locations
the United
States,”
IV,
M.M.C. Part
11, 2001”);
September
[on]
States
¶ 6(25)bB(l),
himself and
provided
when he
III;
Specification Charge
Qaeda
various services to bin Laden and al
by preparation
propaganda
of various
place
That “the conduct took
Qaeda
products
recruiting
intended for al
in the context of and was associated with
training,
and indoctrination
and incited
¶
IV, 6(25)bB(4),
hostilities.”
Part
M.M.C.
terrorism;
to commit
facilitated
persons
*57
as shown
a series of violent actions
pledges
loyalty
the
to bin Laden and
Qaeda against
al
the United States
bin
and
prepared
propaganda
dеclarations
plans
Laden’s declarations of his
to attack
Martyr
styled
suspected
Wills for two
the United States.
September
hijackers/pilots,
re
searched the economic effect of those at
Providing
support
material
for terrorism
provided
tacks on the
United States
charged provided compre-
as codified and
Laden,
operated
the results to bin
notice
hensive
of both the conduct
issue
processing equipment
maintained data
fact,
and the
In
elements of the offense.
equipment
media communications
for the
required
the Government was
prove
to
Qaeda
benefit of bin Laden and other al
that
support provided
the material
satis-
Qaeda
leaders and to al
an international
objective
subjective
fied both
ele-
organization.
Qaeda
terrorist
Al
was en
ments.
gaged in
against
hostilities
the United
objective
The
elements include an actus
February
States from at least
1999. The
¶¶
appellant’s provision
reus:
of himself as a
III,
e,
h,
Specification
Charge
g,
j;
Qaeda
member of al
and various services
provide
to
ma
intended
such
support
Qaeda;
as material
for al
common
terial
or
support
resources to such
in
enemy
element 1—“alien unlawful
combat-
organization,”
ternational terrorist
M.C.M.
element;”
supra
ant
see
com-
pp.
¶
IV, 6(25)bB(2),
Part
as demonstrated
mon element 2—that
conduct
took
his “a. traveling
Afghanistan
to
with the
place “in the context of and was associated
purpose
joining Qaeda;
and intent of
al
b.
conflict,”
recip-
with an armed
and that the
’Adi,
meeting with Saif al
the head of the
ient of the
“an
support was
international
Qaeda
Committee,
al
Security
step
aas
organization engaged
terrorist
in hostili-
joining
Qaeda
toward
the al
organization;
against
ties
the United States.” See
undergoing
c.
military-type training at an
pp.
alleged,
1187-93. As
Qaeda
Government
sponsored
training camp then
required
prove
Qaeda
was
to
that al
Afghanistan
Aynak;
located
near
Mes
d.
pledging fealty,
“bayat”
or
to
engaged
against
the leader of
“then
hostilities
1299-1304,
terprise, (IMT) at Nu- Military Tribunal ternational rorism, knowledge enterprise’s of that with trial and just prompt “for the remburg specific ongoing or crimes with past major war criminals of of the punishment enterprise. support that criminal intent com- The IMT was European the Axis.”81 for terrorism Providing support material members, including repre- four prised of liability, anal- essentially co-perpetrator is from the Governments sentatives organi- in criminal membership ogous States, Kingdom of United- cooperation in that the essence is zation Ireland, Northern Britain and Great aiding akin to purposes, criminal for Republics, Union of Soviet Socialist such, the complicity. or As abetting, of the French Government the Provisional has liability criminal theory of individual Hamdan, at F.Supp.2d 801 Republic. See general principle as a long recognized been 149, at n. 149 2011 2923945 *37 1305 n. WL law armed conflict and of law under the of Inc., F.3d Pfizer, v. 562 (citing Abdullahi particularly This is by civilized nations. (2d Cir.2009)); T.M.W.C., 163, supra 1 177 voluntarily joins an accused true where the 36, 1, 2, p. 10. n. at arts. or- knowledge of that organization, with empow- Article of the London Charter 9 engagement ganization’s systematic Hamdan, IMT to “declare ered the activity. criminal See IMT, 2, T.M.W.C., IMT, 1, Agreement, Charter of the art. art. 81. Charter of the Aug. 59 Stat. art. supra at 10. Annexed to the London n. T.W.C., 279; Charter, supra n. at X- which U.N.T.S. Agreement was the London XIV. See London as the IMT’s constitution. served organization of which the group purpose. group or individ- mon must be a criminal organiza- ual was a member was formed or used connection with the T.M.W.C., n. tion.” commission of by crimes denounced empowered Article 10 of the charter Charter. Since the declaration with re- try national authorities to indi- competent spect organisations groups any membership viduals for alone in or- will, out, pointed as has been fix the ganization declared criminal the IMT members, criminality of its that defini- national, military or occupation before persons tion should exclude who had no courts. Id. “In such case the criminal knowledge purposes the criminal group organization nature of the is con- organisation acts and those who proved ques- sidered and shall not be were the State member- drafted tioned.” Id. ship, they personally impli- unless were 2,000,000 organizations, Six with about cated in the commission acts declared 500,000 Germany members in and about criminal Article 6 the Charter as zone, in the U.S. were indicted as criminal organisation. members Member- organizations Following before the IMT.82 ship alone is enough not to come within vigorous scope debate on the of member- scope these declarations.83 ship liability, particularly regard- concerns SA, The IMT determined Reich ing liability the individual criminal per- Cabinet, High and General Staff and Com- widely sons with disparate levels of (GSHC) mand organiza- were not criminal knowledge, responsibility, authority tions and declared three charged other respective within their organizations, the organizations criminal: the Leadership IMT determined that: (National Corps of the Nazi Socialist Ger- effect, therefore, a member of an Workers’) SS, man Party, the the Secret organisation which the Tribunal has de- (the (Gestapo) State Police and the SD clared to be may criminal be subse- Gestapo and SD were considered as one quently convicted of the crime of mem- group because of working their close rela- bership punished and be for that crime T.M.W.C., tionship). supra n. by death. This not to assume that (cid:127) respect 501-23. With organi- to the three international or military courts which criminal, zations declared “the court sug- try will these individuals will not exer- gested, despite inability its to bind zonal cise appropriate justice. standards of *59 governments, that future trials for criminal far-reaching This is a proce- novel membership ought to include stiff pro- due dure. Its application, properly unless Bush, guarantees.” cess Jonathan The safeguarded, may produce great injus- Prehistory Corporations Conspira- tice .... of cy in International Criminal Law: What organisation A criminal analogous Said; Nuremberg Really 109 Colum. conspiracy criminal in that the es- 1094, L.Rev. (citing sence of 1161 22 cooperation both is for criminal T.M.W.C., 499). 36, purposes. supra There must n. group Although be a together bound organised for a com- members of the convicted organizations Taylor, Report added); 82. Telford phasis Final to the Secre Quincy Wright, see also - tary Army Nuernberg Trial, on the War Crimes Nuremberg Law the 41 Am. J. Inti. L. Trials (Taylor under Control Council 38, No. 10 Cassese, (1947); 70 Antonio International 15, 1949). Report) (Aug. 16 Law, (Oxford Press, Criminal at 136-139 U. 2003). T.M.W.C., 36, supra 83. 1 (Judgment n. at 256 (em- Organizations) of the IMT-The Accused Membership Humanity; and Count membership for criminal be tried “could Four — Organizations.84 in Criminal acts ... predicate to or instead of addition membership implication was by conducted There were trials to convic- not be a shortcut charges would by the United States NMT administered not be available certainly would tion and Id. at 35-36. judges. American average complicitous Germans[.]” of defendants group trial included a Each Id. by referred to generally cases are and the defendant, type of of one lead the name Nuremburg Council 2. Control 10— case, other trait organization, or common Military Tribunals Control Council of the accused.85 Under indicted, 10 of the of those persons with Article No. were In accordance trial, and 142 individuals were authorities 177 stood competent national charter Taylor Report, su- convicted the NMT. Military Tribunals Nuremberg (e.g. of these judgment 91. The last (NMT)) pra n. membership individuals for tried 14, 1949. April was delivered on tribunals criminal organizations declared Report, supra n. 94. Taylor national, military and oc- before the IMT cases, the indict- courts. some cupation were tried for Eighty-seven defendants included four the NMT ments before offenses, convicted of 74 were membership categories of “corresponding counts charge among other membership No. 10. defined” Control Council crime solely of a 10 were convicted charges, and to the Secre- Taylor, Report Final Telford Taylor Report, su- membership charge. Nuernberg War Army on the tary culpability n. at 93. The level pra No. Council membership Trials under Control in a solely Crimes those convicted (Aug. widely. “The (Taylor Report) varied organization criminal “Justice,” 1949) “Medical,” Party and Nazi (citing the of SS officers great bulk cases). tried, they if were tried at De- were Count One—Common officials “Pohl” all, ‘denazification’ before local German Conspiracy; Count Two—Wax sign or (Spruchkammem).”86 boards Crimes; Against Three —Crimes Count V; (The See, T.W.C., the "Flick Flick known as 5. Friedrich e.g., n. at 17 84. VI; Krauch known as in vol. 6. Carl read: Case” for Count Four standard Indictment VIII; Brandt, Genzken, in vols. VII and "I. G. Farben Case” Ge- Karl "The defendants "Hostage bhardt, Brandt, Case” List known as Mrugowsky, Poppen- 7. Wilhelm Rudolf XI; Sievers, Brack, Hoven, known as the dick, Ulrich Greifelt in vol. 8. and Fischer are V; 9. Otto IV and "RuSHA Case” in vols. membership organization de- guilty in an "Einsatzgruppen known as the Ohlendorf the International clared to be criminal IV; Krupp Alfred known in vol. in that each Case” Military Tribunal in Case No. IX; "Krupp 11. Ernst von Case” in vol. defendants was a member of the said "Ministries Case” known as the September mem- Weizsaecker 1939. Such ... after [SS] XII-XIV; 1(d), von Leeb 12. Wilhelm *60 vols. paragraph Arti- in bership in violation of 10.”). in vols. "High Command Case” known as the Law No. See Control Council cle II of X,XI, XV). 82, Report, supra at 72. Taylor n. also 159, 82, T.W.C., (The at see also Taylor Report, supra n. 86. supra at VII case n. 85. 1 defendant, ("Defendants on number, selected for trial popular at 16 id. name of lead name, charges happened to be members who 1. Karl other are as follows: and volume by the organization criminal declared in vols. of an the "Medical Case” Brandt known as charged crime II; additionally with the were IMT Erhard Milch known as I and 2. therein, II; was ever membership but no one of Josef Altstoetter in vol. 3. "Milch Case” Ill; mem- Nuernberg with the crime of charged at 4. Case” in vol. known as the "Justice alone.”). bership Case” in vol. known as the "Pohl Oswald Pohl ted, in, By way example, of German Master Ser- took a consenting part were con- guilty Graf was found geant Mathias nected with plans enterprises involv- membership in the SD.87His service was ing, organizations and were members of “voluntary” and he was found to deemed murders, groups connected with: brutali- knowledge participat- have but not to have ties, cruelties, tortures, atrocities and oth- any meaningful manner. After leav- ed er inhumane acts ... princi- committed SD, ing the he was drafted into the SS. As T.W.C., pally the ... supra SS.” n. at draftee, guilty he was found not of SS 23. The charged indictment the defen- membership. His sentence for member- dants, group as members of the “Friends ship in time the SD was served. ..., which, closely Himmler ... worked Poppendick, Doctor during Helmut tried SS, with the frequently regularly met cases, Physician the medical was Chief leaders, aid, advice, with its and furnished Office, the Main Race and Settlement SS, support financial and other- Grawitz, Chief of the Personnel Office in wise.” Id. The Tribunal found that an duty army surgeon, active a lieutenant “gist of charge] [the is that as members of SS, and a colonel colonel Friends, the Himmler Circle of Flick and T.W.C., supra Waffen SS. n. at Steinbrinck knowledge with of the criminal 248-50. The found the tribunal evidence activities of the SS contributed funds and guilt “insufficient to sustain under counts support.” influence to its at Id. 1216. (war indictment,” two and three of the The Tribunal reasoned that where clear against humanity), crimes and crimes al- crimes humanity and war crimes though Poppendick the tribunal noted that committed, were an “organization which on “at least had notice experiments] [the a large responsible scale is for [crimes consequences.” and of their Id. 252. such as “mass nothing can be murders”] The tribunal Poppendick guilty found else than criminal. knowingly by One who membership organization an declared his influence money contributes criminal, and him years sentenced to ten must, support thereof under imprisonment. legal settled Id. at 299. principles, be, be deemed to ... certainly Meyer-Hetling “Konrad was the chief of accessory to such crimes.” Id. 1217. the planning office within the Main Staff The Tribunal monetary noted that the con- T.W.C., Office.” 5 n. at 156. He tributions commenced before the criminal professor was a agriculture scientist of known, activities of the widely SS were part who worked developing time prosecution that the prove did not that the “General Plan a “proposed East” was ” money directly contributed was plan for the ‘reconstruction used for of the East.’ activities, Id. The Tribunal found him criminal guilty only “played that defendants membership in a organization, criminal but a part small program criminal namely SS, that he was a member of the SS,” and that money some of the was id. at and sentenced him to time likely used for cultural purposes. Id. at served. Id. at 165. Still, the Tribunal found that the criminal character of the SS “must Case,
In the Flick
defendants Flick and
known,”
have been
and that
charged
Steinbrinck were
how the mon-
committing
ey
“war crimes
against humanity
spent
and crimes
was immaterial.
Id. 1220-21.
to,
in that they were accessories
abet- The Tribunal found Flick and Steinbrinck
*61
T.W.C.,
81,
supra
Graf,
87. 4
n.
at 584-87
concerning
is the
details
Meyer-
the
of
cases
Flick,
paragraph.
source for the
Hetling,
information in
Our
and Steinbrinck.
Id. at 1305-
10,
provides
Court's decision in Hamdan
more
2011 WL
at
*37-*40.
and
convicted of no other offense
committing
crimes
dick was
of
war
guilty
membership
the
in a
by supporting
organiza-
than
criminal
against humanity
crimes
10-year
for such
sentenced to a
term of
organization responsible
tion and
criminal
Id. at
1222-23.
imprisonment.
180-300.
[T.W.C.]
acts.
Supreme]
habe-
U.S.
Court denied
[The
Tribunal
the
respect
Steinbrinck
With
relief,
836,
603,
333 U.S.
68 S.Ct.
did not seek admission
“[h]e
noted that:
(1948),
L.Ed. 1119
аnd the executions
SS”;
hon-
membership was
“[h]is
into the
at Landsberg prison
carried out
on
were
tasks,
only had
official
orary”; he
two
2,1948. 2
June
330.
[T.W.C.]
nature;
were
of which
criminal
neither
Hamdan,
duties,
696,
at
only casual
548 U.S.
establish as criminal when uniformed services senior military legal intentionally: committed advisors topics during discussion (a) (ii) who, person Conduct Congressional hearings.91 Congressional knowledge either adoption the aim and relatively scope this broad (Tadi Judgment), 89. Prosecutor v. Tadic Case specifically tive offenses enumerated and IT-94-1-A, (ICTY ¶200 No. requirement 38 ILM 1518 there prove must be a Chamber, App. July 1999)(quoting The defendant committed overt act in fur- conspiracy. United States America therance of the v. Otto et This would Ohlenforf mean, al,, T.W.C., 372-73). example, conspiracy for n. to com- mit murder in violation of the laws of war offense, cognizable would be a but affilia- Orga- Convention Transnational organization, tion with a standing terrorist (Nov. 15, 2000), entry Crime into force nized alone, cognizable. would not be 29, 2003, Sept. signatories: for UN on Cong. 2006). (Sept. Sen. Record S10411 13, 2000, parties: signed by U.S. on Dec. admiral, person, This same as a retired vice 3.2005, entered into force for U.S. on Dec. currently Convening Authority Military (No. T.I.A.S. 2237 U.N.T.S. 319 Brigadier Commissions. General James 39574). Walker, Judge Staff Advocate to the Comman- Corps, dant of the Marine stated in his letter August 91. On Senator John McCain McCain, "jurisdiction to Senator of the mili- sought military the views of the senior law- tary enough commissions should be broad yers Department concerning of Defense prosecution facilitate the of all unlawful ene- regard use of commissions. In my combatants.... Jurisdiction must extend offenses, scope membership Rear Ad- groups, regardless to other terrorist of their MacDonald, miral Judge Bruce then Advocate organization, level of and the individual 'free- Navy, responded: General of the lancers' so common on the current battle- included, Conspiracy only should be but Cong. (Sept. field.” Sen. Record S10412 conspiracies 2006). to commit one of the substan-
1209 liability reports September with the first criminal obtain potential individual based, Qae- at terrorism bin and other al respect to international 11 attacks to Laden membership in a crimi- upon least in and the eco- part, leadership; researching da logical tack and evi- nal organization of those attacks on the Unit- nomic effect the statute. plain language in the dent and the results of his providing ed States to bin Laden. research is consistent with The 2006 M.C.A. “that future trials suggestion IMT’s IMT’s declaration Similar membership ... include stiff due criminal or- organizations and as “criminal groups injustice. to process guarantees” prevent un- ganizations,” Congress that an stated 88, 22
Bush;
(citing
supra n.
a mem-
enemy combatant includes
lawful
499).
36,
T.M.W.C.,
Providing
n.
supra
a lawful
Qaeda, not
ber of al
otherwise
includes
support
for terrorism
material
However,
combatant
2006 M.C.A.92
and com-
stringent procedural safeguards
organi-
unlike the IMT’s determination
determinations which
prehensive factual
binding upon the
guilt
zational
which was
may
must be satisfied before a conviction
NMT,
judge made
military
commission
punishment imposed.
be returned or
that
an initial determination
readily
conduct
meets the
charged
The
personal jurisdiction, spe-
commission had
in a criminal
requirements membership
ap-
cifically that the evidence established
fealty to
organization. Appellant pledged
837, 873. And
pellant is an AUEC. Tr.
joined al
an armed
Qaeda,
bin Laden and
ultimately this determination was made
organiza-
international
terrorist
non-state
as an
of each of-
the members
element
tiоn,
bellig-
in armed
as a
engaged
conflict
fense,
evidentiary
an
applying
standard
im-
erent,
to
not entitled
either combatant
Tr.
proof beyond a reasonable doubt.
protection.
munity or POW
From
843-44, 916-17.
joined Qaeda
capture
time
al
until his
he
proposition
this
is also consis-
Finally,
in hostilities
Qaeda
engaged
al
was
long-held
view ex-
with the
U.S.
tent
and
the United States.
terrorism
Army
pressed through successive U.S.
knowledge
Qaeda
Appellant had
that al
belliger-
that unprivileged
Field Manuals
joined and
engaged in terrorism before he
subject
engage in
are
ents who
hostilities
support
intentionally provided material
under
law of armed
punishment
Qaeda
February
and
to al
from
resources
(quoting
supra pp.
See
1186-88
conflict.
through
December 2001.
¶¶369,
373;
Manual
and
included
himself
support
providing
That
¶¶
82).
FM
Qaeda
of al
and various
a member
has made a “sub
Government
including
products
propaganda
services
showing,”
n.
supra
see
stantial
Qaeda
in-
recruiting
al
intended for
conduct,
his
charged
including
appellant’s
training;
inciting others
doctrination
Qaeda,
in al
international
membership
terrorism;
facilitating pledges
commit
pro
intentional
organization,
terrorist
Laden
loyalty
preparing
to bin
support
of material
and resources
vision
Martyr
styled as
propaganda declarations
Qaeda
al
Qaeda, with
knowledge
suspected September
two
Wills of
engages
in terrorism
engaged
main-
hijackers/pilots; operating
engaged
armed conflict
processing equipment
taining data
States,
an offense
constituted
used
equipment
media communications
combatants”).
948a(l)-(3),
2009 M.C.A.
§
nn.
See
also
2006 M.C.A.
See
“alien,”
948a(7)(C),
(defining "unprivi-
supra n.
(defining
24 and 53
the terms
combatant,”
belligerent”).
leged enemy
enemy
and “lawful
“unlawful
*64
law of armed conflict
against
punisha-
the
nal Tribunal for the former Yugoslavia
(ICTY)
by military commission when commit-
ble
prosecute
ad hoc court to
—as
ted.
crimes
during
period
committed
of
armed conflict in
Yugoslavia.
the former
Enterprise
3. Joint Criminal
ICTY,
827,
Statute
S.C. Res.
32
of
(1993).
in our recent
in
As articulated
decision
I.L.M.
Security
1203
The
Council’s
Hamdan,
recent,
relatively
yet
widely
jurisdiction
mandate limited ICTY
to those
theory of
accepted,
individual criminal lia-
areas of “international humanitarian law
“joint
bility known as
criminal enterprise”
‘beyond any
which
part
[were]
doubt’
(JCE) provides additional support for the
customary international
The
law[.]”
Sec-
charged
that the
conclusion
formulation of
retary-General, Report
the Secretary-
providing
support
material
for terrorism General Pursuant
to Paragraph 2 Secu-
¶
punishable by military
808,
was
rity
commission
Council Resolution
34 U.N.
1993).
3,
when the offense occurred.93 JCE is
(May
root- Doc.
Since the
S/25704
jurisprudence
1994,
ed in the
of Nuremburg and first
hearing
the Tribunal has
tribunals,
other
II
post-World War
and is
indicted more than
ranging
160 individuals
derivative of direct commission of an of-
from common
generals
soldiers to
co-perpetration.94
fense or a form of
Prime Minister Slobodan Milosevic.
adopted
recognized
JCE has been
as
“Dusko Tadic was the first defendant
a theory of individual criminal
liability
tribunal,
tried before an international
upon
participation
ICTY,]
based
one’s
in a crimi-
post-World
since
IIWar
courts
nal enterprise
customary
under
interna-
ceased operating.”96 He
charged
tional
law various treaties and interna- with participating with others in the com-
tional tribunal decisions since at least the mission of various
including sexu-
crimes—
1993,
Security
assault,
1990s.95 In
the UN
Council
rape, beatings, killings, and
established
first of the modern interna-
other cruel
conduct
Bosnian Mus-
tional tribunals —the International Crimi-
During Appeals
lims.97
Chamber review
Hamdan,
40,
al.,
93.
ing
not exclude involving design perpetra- common the in commission crimes which occur the of in tion of the crimes for provided one of persons having a common where several need participation the Statute. This activity on criminal that purpose embark specific not involve commission aof jointly by carried out either or is then (for provisions crime one of those under of plurality per- members of this some extermination, murder, example, tor- Whoever contributes com- sons. ture, etc.), may rape, but take the form crimes of group per- mission of the in, to, assistance or the contribution of of the in group, sons or some members pur- execution the or plan common of a common criminal purpose, execution pose. criminally held to may be be liable[.]98 Tadic, IT-94-1-A, Prosecutor Case No. v. plan as the or pur- Also known common ¶ (ICTY Appeals ILM 227 Cham- doctrine, pose the Appeals Chamber iden- 1999) Judgment, July (emphasis ber “basic,” types of tified three JCE “concen- added). Judgment, n. supra Tadié camp,” and “extended.” tration Tadic ¶ (emphasis original). in ¶¶ 196, Judgment, n. The Chamber concluded Appeals find 203.204. We the “basic” “extend- according to the mens element differs rea of JCE categories particularly ed” relevant con- category design the of common under general require- The actus reus here. as follows: sideration summarized same all three catego- ments are the for is is the required what [Basic JCE] ries, the mens rea elements are sub- while (this intent a certain crime perpetrate to stantially different. part intent of all being the shared on the Appeals Chamber summarized the co-perpetrators). elements, reus, objective or actus JCE the required is is what [Extended JCE] in as: provided for the statute ICTY participate intention to in further They plurality persons. i. A need activity or the criminal the criminal military, organised political in a not be contribute purpose group a structure, clearly as is or administrative joint enterprise or in criminal Lynching and the shown Essen crime event the commission cases. Kurt Goebell addition, for responsibility In group. plan, a common ii. The existence of upon agreed a crime than the one other purpose amounts to or design which if, plan only under сommon arises pro- a crime involves commission of (i) case, it was of the circumstances There no vided Statute. for be might that such crime necessity design pur- for this plan, foreseeable by one or members perpetrated have been other pose previously arranged 1-T, ¶ Ralby, supra (quoting Tadic Sentencing Judgment, n. at 296 No. IT-94— IT-94-1-A, Judgment, supra 14, 1997)). n. Case No. (July ¶ 190). (ii) group willingly the accused support offense, overt act in shares took that risk. many of providing attributes material sup ¶ port for added). example, terrorism. For following (emphasis Id. See Prose- ¶¶ Brdanin, World II a IT-99-36-A, War British court cutor v. tried (ICTY two German Appeal Judgment Chamber servicemen and five civilians 2007). Apr. for war crimes the deaths of three Brit airmen, ish who were attacked and killed prove needed to partic- The evidence by a mob while under the escort of a in, thus ipation liability partic- ” JCE, German soldier the “Essen Lynching ipation in a is therefore distinct and attack, case.99 Prior to the dependent upon type a German offi JCE issue. Tadic, cer, Trial in a presence Chamber found no loud voice and in the of a crowd, the accused evidence had taken an “ordered that the escort should not *66 killings charged. actual part Id. at if interfere German civilians should molest ¶¶ Chamber, Appeals 178-83. The howev- prisoners, adding prisoners] that [the er, the Trial overturned Chamber and con- shot, ought to be or would be shot.” Id. Tadic, relying victed on the concept of Although the present officer was not when ¶¶ purpose. common Id. at 230-37. The airmen, the crowd attacked the British he Appeals stated that criminal Chamber re- and the escort were convicted of murder sponsibility under Extended JCE “for though they even had not struck the air agreed upon crime other than the one in men. Id. if, plan only the common arises under the case, In the Milosevib prosecutors ar- (i) case, circumstances of it was fore- gued that the indictments against Milosev- might perpe- seeable that such a crime be part scheme, ic were “all of a common by or other trated one members of the strategy, plan or on part of the ac- (ii) group willing the accused took that Serbia,’ cused to create a ‘Greater a cen- ¶ (emphasis Id. at 228 in original). risk.” tralized Serbian encompassing state actively part As Tadic took in the attack Serb-populated areas of Croatia and Bos- town, on the and was involved in beating a Kosovo, nia and all of plan and that this resident, Appeals Chamber found him was to be by forcibly achieved removing criminally liable because he shared the non-Serbs from large geographical areas ethnically intent cleanse the town of through the commission of the crimes Jaskici of its population. non-Serb Id. at charged the indictments.”100 Under ¶¶ was, therefore, 232-33. He held to be this theory liability, members of the responsible they for the five deaths since JCE were held responsible for all of the perpetrated were in the course of and crimes committed group further- were a foreseeable consequence of the ¶¶ ance of the “Greater Serbia” plan. Ham- plan. common Id. at 233-34. dan, F.Supp.2d at n. 1286 and doctrine, The JCE which extends (citations WL 2923945 at *23 and n. 78 liability individual criminal to each mem omitted). organized ber of an criminal group for crimes committed At group within the least three high-ranking members of common plan purpose, or and requires police government, an the Nikola Saino- Miloševi n , ¶89, Judgment, supra 99. Tadic (citing n. 100. Prosecutor v. Slobodan Case IT-99-37-AR73, IT-01-51-AR73, others, Heyer Nos. Rea Trial Erich and six British sons for Decision on Prosecution Interlocu Criminals, Military Court for the Trial of War Joinder, tory Appeal from Refusal to Order Essen, ¶ 88, (1945)). p. 1 UNWCC ¶ 18, 2002). (Apr. vi n , necessary to the Lukic, either substantial and Sreten Pavkovic Nebojsa objectives.” Id. of the JCE’s achievement of the JCE. as members convicted were Milutinovi nn , ¶ may guilty be found An accused Case v. Milan Prosecutor “assist, do not (ICTY if his acts or omissions even Trial Chamber No. IT-05-87-T support” moral 2009). or lend encourage, satisfy To Feb. Judgment underlying offence. commission of the of the participation element JCE Judgment, vol. Trial Chamber Milutinovic ac purpose, an in the common accused ¶ “does re- responsibility I at 103. JCE and further the “may contribute to cused accused, by the which participation quire of the JCE various purpose common Vujadin Popovi n , in, or may take the form of assistance v. Prosecutor acts.” to, of the com- ¶ contribution the execution (ICTY IT-05-88-T, 1, 1026 vol. Case No. Appeal Brdanin Chamber 2010). purpose.” mon Judgment June Trial Chamber ¶ 424. Judgment at “[a]n observed that Popovic Tribunal further the may contribute accused rati- Although the United States has not by various purpose of the JCE common of the International fied the Rome Statute acts, carrying out not involve which need (ICC), as of June Criminal Court a crime the actus reus of any part of parties, and 139 there were 115 state purpose, the common forming part of signed have the Rome Statute of states *67 at all.” at vol. any crime Id. indeed ICC,101 standing a tribunal with creating ¶ Kvoceka, v. Case (citing 1026 Prosecutor alleged to jurisdiction individuals over ¶ (ICTY IT-98-30/1-A, Judgment No. genocide, crimes have committed Judgment Feb. Appeals Chamber crimes, eventually, humanity, war omitted). Indeed, 2005); other citations Rome Statute of the aggression. crimes of physi in a need not participant [JCE] “[a] ICC, of Report n. art. 5. See also supra any any in element of cally participate Assembly, the UN General the ICC to requirements long so as other JCE crime” 2010). A/65/313, Article (Aug. pp. 6-7 ¶at 99. are met. Id. expan- includes an 25 of the Rome Statute theories of individual sive list of available require “responsibility does not JCE liability including Specifical- JCE. criminal nor any showing superior responsibility, of 25(3)(d) provides person that ly, Article significant a substantial or proof of and liable “criminally responsible ¶ shall be “does not Id. 104. JCE contribution.” in accordance with this punishment for to commit a crime.” proof of intent require if statute” he: IT-99- Brdjanin, Case No. Prosecutor v. ¶ (d) way contributes to
36-A, In other Interlocutory Appeal on Decision 2004). (ICTY attempted or commission commission Chamber Mar. Appeals persons group “Ex- such a crime necessary to establish also Intent See Such purpose. with a common acting 1211-12. pp. tended JCE” be intentional contribution shall legal requirement specific “There is no (i) aim of Be made with the shall either: significant make a contri- that the accused - activity or crimi- criminal furthering the Appeals Kvoecka bution” to JCE. ¶ where such of the purpose group, contri- nal Judgment at 97. “The Chamber the commis- activity purpose involves been or Accused need not have bution of the Hamdan, mature democracies n. most of the F.Supp.2d at 1287 and however, world; not the United States has (citing *24 n. 82 WL 2923945 at Ltd., potential of concerns about ratified it because Barclay Bank v. Nat’l Khulumani authority); (2d Cir.2007) other cita- prosecutorial (noting that abuse of F.3d 276 n. omitted). signed tion ICC has been the Rome Statute of the jurisdiction of a crime within the satisfied here. For the sion reasons discussed (ii) Court; supra, specification Be made the knowl- we conclude that the edge group culpa- of the intention of the describes at least two theories (1) bility: crime. membership commit the a criminal or- ganization (e.g. intentionally joining or Thus, the ICC statute includes a JCE membership Qaeda, in al an international theory liability of individual criminal based terrorism, organization engages upon knowing purposeful contribu- terrorism), with knowledge of that tion to the or attempted commission com- (e.g. co-perpetrator terrorism as a mission of crimes a group acting such offеnse). purpose. with a common The incorpo- charged ration of JCE other international con- providing offense of mate- including ventions the 1997 support Convention rial for terrorism shares attributes Suppression JCE, Bombings types are with all three but most ofTemrist efficacy closely reflective of the under JCE resembles “basic” and “extended” international law.102 charged JCE. The conduct includes that appellant himself, intentionally provided Analysis C. Qaeda, a member of al and various materi- response specified by to issues al support Qaeda this or resources to al Court, appellant knowledge Qaeda asserts that for JCE “to that al in or engaged here, be relevant charged engages offenses in terrorism (e.g. intentional at- would have to co-perpetra- [establish protected persons his] tacks on with the intent specific tion of a completed war population) terrorize the civilian crime,” and that “completed such engaged elements was then in hostilities with the were alleged neither nor found.” Although Brief on United States. the mens rea *68 Specified Appellant Issue for 6. He charged further element of the offense is not iden- argues that the “Material Support charge” requirements tical to the mens rea of ei- offense, is not a completed JCE,” that it does not ther “basic JCE” or “extended it is require intent “to further a foreign substantially terror- similar to the intent element activities,” ist organization’s illegal types and of both supra pp. JCE. See 1211- that “assuming provisions the of the 12 and n. [2006 89. requiring M.C.A.] could be construed as fact, In require the mens rea equivalent the liability for the [JCE] ments of the charged offense of providing underlying that appellant crimes” was not material support may for terrorism be on notice that subject personal he was to more present onerous than that in either liability a principal underlying “as for war “basic” or “extended” in JCE that the (citations omitted). crimes.” Id. at 16-17 prove beyond Government must a reason
We disagree. able doubt that the accused with knowl Appellant correctly edge Qaeda asserts that that al engaged engages in or relevant, for JCE to be specification terrorism, the in intentionally provided himself offense, must allege completed services, a but con and other requires which two trary assertion, to his requirement First, that separate findings. is mens rea that he Convention, 102. Bombing supra pose; n. such contribution shall be intentional 2(3)(c) (“3. Any person art. furthering also commits an made either be with the aim of (c) person way offence if that general activity purpose other criminal or of the contributes knowledge to commission of one or more or be made in the of the group paragraph offences as set forth in group 1 or 2 a intention of the to commit the offence group persons acting concerned.”). pur- with a common or offences that the intentionally assuming arguendo pro- himself and other Even provided viding material terrorism support resources to al for mens enumerated services or requirement arduous than did rea is less that Qaeda; and that he so with second JCE,” in and as required “Extended such Qaeda “engaged or knowledge that al reduces the burden Government’s while terrorism,” which engages incorporates expanding punishable, of conduct scope requirement an additional mens rea attrib Congress we are did not convinced to of that perpetrators utable terror authority exceed its to constitutional define (e.g. “intentionally kill[ing] ism in punish offenses the law of harm great bodily on one or flict[ion of] nations in codifying this formulation of protected persons, intentionally more providing support material for terrorism. act....”) engages M.C.A. 950v(b)(24), p. Again mili supra conduct, charged The of which the mem- tary judge’s commission instructions re findings of ultimately guilty, bers returned applied flect commission appellant Afghanistan was that travelled to precisely the law in this manner. Tr. 869- purpose with the intent of al joining Qaeda, Qaeda figure met al key with a as a step joining Qaeda, al underwent “mili- minimum, At a the “extended JCE” tary-type” Qaeda at an al training spon- (e.g. mens rea “intent requirement par- training loyalty al camp, pledged sored in, to, and ticipate contribute further the Laden, joined Qaeda’s then leader bin activity purpose criminal or criminal of al Qaeda knowledge al of its terroristic 1211-12.) Qaeda” pp. implied see throughout activities which continued specification, provides which exam- February period charged entire 1999— Qaeda ples engaged of the al hostilities December 2001. joined, both before and while he appellant Indeed, Qaeda. Al was member of has made “sub Government charged most notorious conduct was that supra n. that the showing,” stantial see products appellant prepared “propaganda theory criminal liability JCE of individual including ‘The Destruction the video provides support additional conclu Cole,’ Destroyer American U.S.S. to solicit providing that the charged sion offense Qaeda, material support for recruit punish *69 support material for terrorism was to the personnel organiza- and indoctrinate at the by military able commission time Qaeda, objectives tion and of al to committed. solicit, persons to incite and advise commit Complicity D.
terrorism,” a video titled sensationalize examples Qae-
one of the of “Principle Nuremberg enumerated al VII The Tribu- of States, complicity da’s violent attacks on the United Report” recognized nal also on as the October 2000 attack the USS the commission a war crime an of- of Aden, Specification The under law.104 “The COLE Yemen. fense international ¶ III, e, complicity of are Charge supra p. of 48. three essential elements Principles judge under law.” military incorpo- 103. commission crime international rated reference the definition terrorism Recognized in the Charter International Law 950v(b)(24). from 2006 M.C.A. Tr. 871. Nürnberg Judgment and in the the Tribunal supra p. See from his earlier instruc- Tribunal, Report the of the International Law charge. conspiracy on Tr. tions the 856. of its Second Ses- Commission on the Work GAOR, sion, Sess., VII, Principle 5th U.N. "Complicity in the commission of a crime (1950), Supp. crime, No. U.N. Doc. Y.B. against peace, A/1316 or a crime war (1950), Principle http:H humanity Inti. L. Comm’n. forth in VI is a as set (1) (2) crime; way commission of a genocide, the the the commission of complicit who, who is accomplice’s they but lack specific because —mate- —one rial to the commission of that nexus, contribution specific intent motive cannot be crime; accomplice’s intention successfully prosecuted aiding for committed, accom- the crime be abetting genocide.... Only the crime of disregard for plice’s potential reckless by extending liability political to the ac- of its commission.”105 tors, brokers, arms and States that facil- genocide promises itate can the supra Tadic Judgment,
In the
n.
Genocide Convention be fulfilled.106
¶ 191,
Appeals
the ICTY
Chamber com-
on the distinction
persons
mented
between
proof
Another scholar asserts that
crimes,
organizations implicated
in war
complicity requires prosecutors
“to
leaders,
particularly organizational
who of-
participation
show intentional
acts
accomplices,
ten are
opposed
contributed toward
criminal result with
physical perpetrators of the acts as fol- out
prior agreement
defendant’s
toward
lows:
Bush,
that end.”
n.
at 1208.
Although only some members of the The offense of complicity
supports
further
group may physically perpetrate
appellant’s
the conclusion that
conduct vio
criminal act ...
the ... contribution of
lated the law of armed conflict at the time
the other
group
members of the
is often
committed.
facilitating
vital in
the commission of the
Aiding
Enemy
E.
question.
offence in
It
follows then that
gravity
the moral
participation
such
practice
The historical U.S.
of trying the
often no less—or indeed no different— offense of aiding
enemy by military
from that
actually carrying
of those
out
provides
commission
support,
additional
question.
the acts in
minimum, analogical
at a
support, for the
recently argued
One scholar
in the con-
appellant’s
conclusion that
charged con-
genocide
text of
that:
providing
duct as
material support for ter-
The crime of complicity
punishable by
rorism was
exists
commis-
punish those who contribute in a materi-
sion.107
untreaty.un.org/ilc/texts/instmments/english/
to have
by military
aided to be triable
com-
Hamdan,
draft20articles/7-l-l950.pdf.
Compare
mission.
106. Id. at 951-52. See also Genocide Con-
696-97,
(Thomas
Scalia,
1217
948a(l)(i).
of
at
The elements
existed in ism.
Id.
enemy
long
has
Aiding the
support
material
to terrorism
providing
The Conti-
military jurisprudence.
U.S.
104,
similar to the elements of Article
Ar-
are
American
enacted the
Congress
nental
Winthrop
As Colonel
noted:
UCMJ.
1776, including Section
of War of
ticles
forbidding trade
XIII,
18,
any per-
Infractions of
rule
punishes
[the
Article
which
enemy], by sell-
enemy
interchange
with
or
with the
relief of “the
provides
son who
ammunition,”
to,
with
victuals,
ing
buying
contracting
or
from or
or
who
money,
enemies, furnishing
supplies,
them with
protects] an ene-
“knowingly
or
harbor[s]
carrying,
32,
corresponding,
passing
mail
at 967.
Winthrop, sy/pm n.
Con-
my.”
c.,
authority,
are
the lines without
&
enacted Article of War
gress subsequently
war,
or
violations
the laws
more
45,
against aid-
continuing
prohibition
of
of
they
as
render
grave
proportion
less
Winthrop
at 102.
enemy.
Id.
ing
or
to the ene-
material aid
tried for
that civilians can be
concludes
information
and,
so,
will
my
attempt
or
to do
as
enemy
under this article. Id.
aiding
illustrated,
among
are
be
1916,
29,
August
Congress
102-104. On
hereafter
frequent
most
triable
enemy
an offense in
aiding the
included
offences
punishable by military commission.
81,
subsequently
Article of War
Olson,
32,
v.
7
art. 104. United States
supra
(emphasis
UCMJ
n.
at 777
Winthrop,
250,
added).
460,
81,108
1916,
22
1957 WL
U.S.C.M.A.
C.M.R.
In
Article of War
genesis
enemy
of Article
(discussing
aiding
4621
expanded the offense
104, UCMJ); See
pro-
81 and Article
added” to
thing
of War
when “or other
was
1920,
1950, MCM,
MCM,
MCM,
enemy,
2008.
intangible aid to the
providing
hibit
appellant’s
include
conduct.
which could
“Enemy”
defined in the 2006 M.C.A.
Olson,
466-67, 22
See
U.S.C.M.A.
948a(l)
948a(2),
per-
§§
and it includes
256-57.
C.M.R.
materially
“purposely
have
sons who
conclusion,
supported
hostilities
the United
In
the Government
948a(l)
§§
See 10 U.S.C.
su
showing,”
States.”
a “substantial
see
has made
948a(2),
24,
conduct, in
32,
nn.
See also Ham-
charged
n.
pra
dan,
130,
fealty
n.
to bin
F.Supp.2d
cluding appellant’s pledge
at 1298
Qaeda,
in
(quoting
membership
n.
in al
2923945 at *31
Laden and
WL
¶230(1)(1>)).
term,
in
MCM,
IV,
organization, and
Part
ternational
terrorist
support
material
provision
of al
tentional
“enemy,” clearly includes members
Qaeda
knowledge
resources to al
Qaeda
engaged
who have
acts of terror-
indirectly,
death or such other
aiding
enemy
Arti-
shall suffer
whether
under
termine
104, UCMJ,
punishment as a court-martial
applies ... because [Hamdan
cle
may
United States v.
violating
direct.”
charged with
Article
commission
not
was]
Olson,
22 C.M.R.
looked]
the Court
to the law of
U.S.C.M.A.
[and
UCMJ
(1957).
Brig. Gen.
underpinnings
pro-
for the historical
Appellant simply proffered per- no tions equipment used to obtain the first argument treaty suasive under or custom- reports of September 11 attacks to bin ary membership international law that in a Qaeda leadership. Laden and other al organization Qaeda, terrorist such as al addition, he was convicted of researching engaged when in armed conflict with a the economic effect of those attacks on the state, nation entitles an individual member United and providing States the results of any special status under the law of Laden, his research to acting bin as armed conflict. contrary, To the custom- personal media and secretary for bin Lad- ary practice has been to treat such persons en. as protections outside the of the law of In light of our decision in Ham conflict, punishable armed for their own dan, 1299, 1305-10, F.Supp.2d and, criminal acts if membership is estab- *32, *37-*41, WL 2923945 at and consis lished, membership their in that criminal discussion, tent with our pp. 1202- organization. The many domestic laws of 20, appellant’s charged long conduct has nations prohibiting pro- conduct similar to punishable been membership a crimi viding material support for terrorism also minimum, nal organization and at a each strongly suggest prohibitions that such charged additional act directly relates general principles constitute recog- law intent, appellant’s knowledge, or actions in nized civilized nations. support Qaeda, of al an international ter statutory The scheme employed by organization rorist with no colorable claim Congress M.C.A., in the 2006 including of legitimacy under the law of armed con (AUEC the common elements flict. similarity charged con conflict), context of an armеd stringent statutory duct and requirements procedural safeguards and comprehensive knowledge M.C.A. of and intent factual determinations are consistent with membership in organizations, criminal international Congress norms. did not JCE theories individual criminal liabili exceed its authority constitutional ty, complicity, aiding enemy rein choosing a name for the “provid- offense— force our holding appellant’s charged ing support material for terrorism” or in conduct violated the law armed conflict defining the providing elements of materi- when committed. al support for terrorism. G. Instructional Error F. Ex Post Facto Appellant Appellant also asserts mil knowledge had Qaeda that al engaged itary commission joined judge erroneously terrorism before in he intentionally provided “propaganda” cluded “recruiting himself and other ma material support and Qae- resources to al terials” within the definition of “material da, including propaganda various products support” in his instructions to the mem-
1219 29-30; that affects sub 2, 19-21, recognize ‘plain error Appellant Brief for bers. if claim 2, 19; rights,’ even of error Tr. 858. stantial Appellant Brief for Reply to the district court’s brought’ the was ‘not judge used military commission The ” — Marcus, States v. charges. Tr. ‘attention.’ United all three same definition 2164, -, 2159, 130 176 U.S. S.Ct. 858, 868, military A commission 871. (2010). 1012, 1017 not The Court appropriate L.Ed.2d the members judge give “shall M.M.C., ed: findings.” 2007 on instructions 920(a). II, States interpreta- See United our
Part
R.M.C.
the cases that set forth
(C.M.A.1994)
Martinez,
426,
may,
431
appellate
40 M.J.
that an
court
v.
tion hold
Groce,
369,
discretion,
3 M.J.
an
not raised
(citing
States v.
correct
error
United
its
(C.M.A.1977)).
objec-
demon-
only
appellant
There was no
where
trial
371
(2)
(1)
“error”;
is an
during trial
strates that
there
tion to these instructions
obvious, rather
Thus,
“clear or
pursuant
R.M.C.
the error is
party.
either
(3)
subject
dispute”;
920(f),
plain
absent
than
to reasonable
the matter is waived
substan-
appellant’s
“affected
the error
error.
ordinary
case
rights,
tial
which
what
addressed
previously
have not
We
the outcome
means” it “affected
context of
“plain error”
constitutes
(4) “the
proceedings”; and
district court
that neither the
2006 M.C.A. and note
fairness, in-
seriously
affectfs]
error
“plain error.”
nor M.M.C. defines
statute
judicial
public reputation
tegrity or
authority
limit
to act
statute does
our
The
proceedings.109
of law in that
respect
“[a]
to matters
with
jury in
de novo the
‘We ‘review
of a
commis-
finding or sentence
in the
a whole and view them
structions as
chapter may not be held
sion under this
if
of the entire trial to determine
of law context
ground
of an error
incorrect on
accurately
governing law
they
state the
materially
prejudices
unless the error
un
jury with an accurate
provide
of the accused.” 2009
rights
substantial
950a(a).
950f(d)
legal
of the relevant
standards
derstanding
limi-
§§
This
M.C.A.
UCMJ,
in the case.’” United
and factual issues
present
tation is also
(10th
Prince,
1257, 1265
v.
647 F.3d.
in Article States
closely
applicable
resembles
Cir.2011)
859(a)
v. Bed
(quoting United States
and Fed.
III courts. 10 U.S.C.
(10th
1148,
52(b).
Cir.
ford,
F.3d
1152
536
supra p.
See
1158.
R.Crim.P.
2008)).110
recently commented
Supreme
Court
variety
of re-
provided
Appellant
Procedure
Rule of Criminal
that Federal
services,
52(b)
including preparing
sources and
appellate
court
permits
“Rule
598,
Cir.2000))
(2d
Marcus,
2164,
(citing Cupp
202 F.3d
606
propaganda and
organization.
‘merely
terrorist
The
colorable’ case for
of
international
inclusion
begins,
sup-
“material
statutory
among
definition
conspiracy
cogniza-
those offenses
any property,
means
port and resources
military
ble
law-of-war
commission.”
service,
Hamdan,
intangible, or
includ-
tangible
Appellant
(citing
Brief for
2339A(b),
supra n. 69
ing____” 18 U.S.C.
598-613,
2749); Reply
U.S. at
126 S.Ct.
added). Clearly propaganda
(emphasis
Specified
Appellant
Brief on
Issues for
12-
materials are within the
recruiting
13.
“any property
terms
and services.”
argues that
The Government
the consti-
judge
military
simply
commission
authority
jurisdic-
tutional
to establish the
amplifying
the definition of
clarifying
military
belongs
tion of
commissions
support”
change
“material
and did not
political
exercising
branches
their war
meaning
expand
defined term or
powers. The Government asserts that ter-
potential
liability.
criminal
appellant’s
His
“guerrillas” engaged
rorists are akin to
instructions assisted the members in de-
war,”
“irregular
“conspiracy
has
termining
appellant
whether
committed
historically violated the law of war” and
charged
conduct. We note that
by military
been tried
commission. Brief
members’ determination of those facts was
22-23, 27-29;
see also Appellee
for
required
by legal
competent
to be
¶¶
supra
43-44,
FM
pp.
80-82.
evidence, beyond a reasonable doubt.
In support
argument,
of this
the Govern-
Thus, we find no error.
widespread acceptance
ment cites the
theory
JCE
individual criminal lia-
IX.
THE
CONSPIRACY TO VIOLATE
bility, international consensus on the ille-
LAW OF WAR AS AN OFFENSE
gality
conspiratorial type
conduct and
TRIABLE BY MILITARY COM-
long-standing
conspira-
U.S. view that
MISSION
cy
punishable
under the law of war.
Appellant asserts that
the offense of
Specified
Appellee
Issues Brief for
1-18.
conspiracy
recognized
is not
as a war
diametrically opposed
These
assertions
law,
crime under international
and thus is
represent
hyper-
more than adversarial
punishable by military
not
commission.
bole. The viability
conspiracy
as a war
Brief
Appellant
for
23-26. He ac-
long
subject
crime has
been the
of contro-
knowledges
precedent
conspiracy
U.S.
versy.
conspiracy
“Some form of
has been
commission,
prosecutions by military
but
charge
part
included as a
and often
military
notes that those
commissions “ex-
judgment
every major
American war
jurisdiction
ercised
under martial-law as
program,
crimes trial
from the
Reply
well as the law of war.”
Brief for
Civil War
12.
Appellant
Appellant emphasizes
Nuremberg
Tokyo
cases to
after
”111
of the Hamdan
precedent
plurality
II....
opinion
controversy
World War
This
Cir.1977) (“the
extent,
necessity,
persons
by military
May
and charac-
convicted
tribunal in
any supplemental
conspirators
ter of
1865 as
instructions to the
assassination of Presi-
Lincoln);
(U.S.
dent
jury
United States v.
Mil.
are matters within the discretion of the
Wirz
D.C.,
1865),
court”).
Aug.-Sept.
Comm’n Wash.
ex-
district
cerpted
Documentary
in 1 The Law of War: A
Bush,
(cita-
n.
at 1097 and n. 5
(Leon
ed., 1972)
History 783
Friedman
Quinn,
stating
parte
tions
"Ex
317 U.S.
(charging
"combining,
first count as
confed-
(1942)) (citing
63 S.Ct.
L.Ed.
but not
erating
conspiring together
with [named
IV,
discussing charge
conspiracy); Mudd v.
persons]
injure
and unnamed
the health
White,
(D.C.Cir.2002) (de-
309 F.3d
destroy
the lives
of soldiers
States,
nying
eight
relief to descendant
one of
service of the United
then held and
*74
Nuremburg
Nuremberg
Tribu
was a cornerstone of
since the
persisted
has
Tokyo, programs almost all nations ei-
highly qualified pub
nals with
views
joined
endorsed,
ther
or later
and is
rulings
from “the IMT’s
ranging
licists
specifically included
the Genocide
subject
on the
of interna
dispositive
were
Convention,
through which it became
and that
the restrictive
conspiracy
tional
of the ad hoc part
jurisdiction
of the
is therefore the rule mod
interpretation
permanent
international
criminal
Bush;
88,
supra n.
law;”
ern international
сourts.113
Cassese,
(citing
n. 240
Antonio
at 1163 and
Nuremburg
The IMT at
“ruled that
its
(2003)),
International Criminal Law
197
jurisdiction,
own
under the London Char
a
to the counter observation that such view
ter,
only
conspiracy
extended
to commit
teachings
complex,
of the
un
“omits the
against
conspiracy
and not
peace
crimes
Tokyo judgment, which as
derutilized
against
or crimes
hu
commit war crimes
permissively
conspiracy
sessed
far more
1162,
88,
supra
Bush at
manity.”
n.
at n.
... as well as of the French war crimes
Trial, 22
Nurnberg
The
(citing
235
trials that
later were held under Control
(“[T]he
T.M.W.C., at 469
Charter does not
emphasized
Law No. 10.”112 Bush
Council
a separate
conspiracy
define as
crime
thorough
in his
discussion of international
except
aggres
the one to commit acts of
conspiracy law:
war.”)).
controversy
sive
This
is also
lawyers
skeptical
Even
international
readily
Supreme
in the
apparent
Court’s
concede,
grudgingly,
that con-
decision in Hamdan.114 Resolution of this
however
liability
enduring
complex controversy
for at
certain acts
is not
spiracy
least
T.W.C.,
81],
war”).
(Super.
being prisoners
Conspiracy
supra
at 1097
Mil.
[n.
at the
1949).”).
Govt. Ct.
Nuremberg
Tokyo
tribunals is discussed
greater
[Bush
1135-1140].
detail in
at
The
(citing
the Pre-
113. Id. at 1097
Convention on
Supreme
recently
Court most
discussed con-
vention and Punishment
the Crime Geno-
spiracy as a war crime in Hamdan v. Rums-
(Genocide Convention),
(Dec.
111(b)
art.
cide
557, 598-612,
See 548 U.S.
126 S.Ct.
feld.
9,
12, 1951,
1948),
102
entered into force Jan.
J.,
2749,
(2006) (Stevens,
c. underwent
Qaeda
conspiracy
Specification
an
tion
in the
sponsored training camp
[in
Afghanistan];
Charge
providing
support
I and
material
unprivileged belligerent,
Hamdan violated the law of war.
Id. at 692-
an
and terrorism-
Thomas, Scalia,
type
death does not result to of the Analysis C.
tims,
than
punishment,
such
other
death,
a military
as
commission under
The 2006
defines con
M.C.A.
chaptеr may
this
direct.
UCMJ,116
narrowly than
spiracy more
the
¶
U.S.Code,
M.M.C.,
6(28)b,
or
law.117
IV,
Title 18 of the
common
The 2007
Part
de-
to the common elements
conspiracy
fines the elements of
as follows:
addition
definition,
"[B]y
many
support
parties them-
material
rived from the conduct of the
conspiracy
Testimony
Any person subject
cases are also
cases.”
[UCMJ]
selves.
to the
Counsel, De-
of Jeh Charles Johnson General
person
conspires
any
to com-
who
other
partment
Hearing
the Sen-
shall,
of Defense
Before
chapter
mit an offense under this
if one
"Military
Committee
ate Armed Services
conspirators
an act to
or more of the
does
8, 2009)
(July
http:H
p.
at
Commissions”
object
conspiracy,
pun-
effect the
of the
be
senate.gov/statemnt/2009/July/
armed-services.
(internal
may
ished as a court-martial
direct.”
Johnson2007-07-09.pdf.
omitted));
quotation
see
marks
citations
Ahmad, JAGC,
Syed
also Commander
N.
Harman,
68 MJ.
116. See United States v.
USN,
the
The Unconstitutional Prosecution of
81, UCMJ,
(C.A.A.F.2010)("Under Article
Act,
Military
Taliban under the
Commissions
(1)
conspiracy requires:
That the accused en-
(2008).
55 Naval L.Rev. n. 2
agreement
tered into an
with one or more
code;
persons
an
to commit
offense under
well-developed
117. The United States has a
That,
(2)
agreement
while the
continued
system
resolving
statutory
judicial
exist, and while the accused remained a
conspiracy
terrorism-type offenses.
to commit
party
agreement,
at
the accused or
least
(June
See SCOR
6-7
S/2006/397
co-conspirators performed
one of the
an overt
(Dec.
2006);
SCOR
S/2001/1220
purpose
bringing
act for the
about the
21, 2001).
e.g., United States v. Mous-
See
object
conspiracy. Conspiracy need
of the
saoui,
(4th Cir.2010)
591 F.3d
296-97
particular
any
form or manifested in
not be
("The
conspiracy charge
words,
of a
are:
elements
rather it is sufficient if the
formal
(1)
agreement among
do
an
the defendants to
merely
understanding
agreement
a mutual
(2)
something
prohibits;
which the law
among
parties.
The existence of a con-
knowing
willing participation
may
defendants'
spiracy
be established
circumstantial
evidence,
including
agreement; and
an overt act
one
reasonable inferences de-
in the
(AUEC
Finally, conspiracy
an
as defined
in the context of
armed
950v(b)(28)
§
2006 M.C.A.
and the 2007
conflict),
following distinctions are
clearly
poten-
net of
M.M.C.
casts wide
noteworthy.
however,
liability;
tial
criminal
individual
First, only agreements to “commit
Congresses and
we are mindful that two
by military
offenses triable
substantive
conspira-
agreed
two Presidents have
commission”
under
M.C.A.
cy
commit
enumerated in the
offenses
950v(b)(28)
punishable
conspira
are
as
2006 and 2009 M.C.A. violate the law of
Consequently,
punishable
to be
as
cies.
punishable by mili-
armed conflict and are
M.C.A.,
conspiracy under
the of
tary commission.
fense(s) object
agreement
of the
must be
alleged
Each of the seven offenses
punishable under the statute.
objects
conspiracy
Specifica-
Second,
accused must
tion of
I is defined as an offense
Charge
act in
“knowingly
overt
order
commit[ ]
punishable by military commission
objective
accomplish
purpose
some
See
2006 M.C.A.
M.C.A.
enterprise.”
Individual
agreement
950v(b)(2),
950v(b)(3),
950v(b)(l),
§§
liability
criminal
is therefore limited to
950v(b)(16), 950v(b)(24),
950v(b)(15),
*77
(1)
persons who have themselves
“commit 950v(b)(25).
object
The first five
offenses:
accomplish
in
ted an overt act
order
(1)
(2) at-
protected persons;
murder of
objective
purpose
agree
of the
some
or
(3)
civilians;
tacking
attacking civilian ob-
(2) “knowingly”
enterprise,”
ment or
and
(4)
jects;
murder in violation of the law of
gener
(5)
done so. Under the UCMJ and the
war;
property
of
in
and
destruction
statute,
371,
conspiracy
§
in
18 U.S.C.
non-
violation of the law of war constitute
liability
controversial,
dividual criminal
attaches if an
violations of
long-standing
by any party
overt act is committed
to the
punishable
the law of armed conflict
remaining
The
agreement.
commission.118
469,
(1997)”).
conspirators
in furtherance
of the
Similarly, Congress acted within offenses, object bers to commit the seven scope authority by of its constitutional de- knowledge pur- and with of the unlawful fining “providing support material for ter- poses agreement willfully entering of that rorism” as offense the 2006 M.C.A. *78 agreement into that with the intent making alleged and in the conduct here purposes. further those unlawful He in punishable by military and Hamdan knowingly committed the enumerated commission, by when committed an AUEC accomplish an overt acts “in order to some the context of armed conflict. See 1181-91; Hamdan, objective supra pp. purpose agreement” see also оr of the ” "2(b) (xi) wantonly military objectives; Killing .... and Other serious not ... or applicable wounding treacherously belonging violations of the laws and customs individuals conflict, (xiii) army; in international armed within the to the hostile nation or ... De- law, stroying seizing enemy's property established framework of international or the un- (i) namely, any following impera- of the acts: Inten- less such destruction or seizure be war; tionally directing against tively attacks the civilian demanded the necessities of 2(c) against population as such or individual ... civil- In the case of armed conflict not hostilities; (ii) character, taking part ians not direct of an international serious viola- Intentionally directing against attacks civilian tions of article 3 common to the four Geneva is, objects, objects military August namely, any which are not Conventions of 12 (v) objectives; Attacking bombarding, following against per- ... or of the acts committed means, towns, villages, dwellings taking part whatever sons no active in the hostilities (i) buildings person, particu- or which are undefended and which ...: Violence to life and (vi) "2(e) military objectives; Killing are not or lar of all kinds ...” and Other murder who, wounding having a combatant laid serious of the and customs violations laws having longer applicable down his arms or defence, no means of in armed conflicts not of an inter- discretion; character, has surrendered at national within the established law, (ix) Intentionally directing against namely, any attacks framework of international education, art, (i) buildings religion, following Intentionally dedicated to acts: direct- ing purposes, against population science or charitable historic monu- the civilian attacks ments, hospitals places taking where the sick such or individual civilians not collected, hostilities; ...”). provided they part and wounded are are direct charged overt acts included his cy, the and the traveling Afghanistan including mili- member- joining Qaeda, undergoing fealty al to bin Laden and pledge intent of Qaeda camp, training Qaeda at an al tary-type ship in al as well as various loyalty personal meeting pledging with and personally provid- he support and services Laden, joining Qaeda. al and then AUEC; to bin Qaeda; al his status as an ed ¶¶ Charge I a-d. Specification The “in place took the context that the conduct with an armed con- of and was associated Qaeda, appellant com- joining After al Charge I. Specification flict.” acts “in order numerous additional mitted objective purpose or accomplish some in- Additionally, subjective elements including: “preparation of agreement” knowledge or ele- clude both a scienter including products, propaganda various ment, rea or intent element. and mens Ameri- ‘The Destruction of the the video “knew the Specifically, accused Cole,’ mate- Destroyer U.S.S. to solicit can agreement” purpose unlawful in- Qaeda, to recruit and support rial is, “joined willfully, that with the intent to organization personnel doctrinate purpose.” further its unlawful solicit, objectives Qaeda, of al and to ¶¶ 6(28)b(2)-(3), M.M.C., IV, supra p. Part to commit Ter- persons incite and advise judge’s in- 1223. The commission rorism;” secretary and acting personal as a to the members articulated structions Laden; secretary facilitating for bin media requirements these and serve to illustrate loyalty to bin Laden and pledges subjective elements of offense.119 preparing propaganda declarations Likewise, uniting act of with “ban- “[t]he Martyr suspected for two styled as Wills ditti, jayhawkers, guerillas, other hijackers/pilots, re- September long unauthorized marauders” has violated searching the economic effect of the acts armed conflict and that “offence the law of on the perpetrated of terrorism complete organized when the band is hijackers/pilots those two on States joined,” Op. Atty. Gen. see providing 2001 and the re- September treaty acknowledges Recent law p. 1186. Laden, operating sults to bin organized in a participation transnational equipment maintaining processing data *79 group criminal in a manner similar to the for equipment and media communications charged conspiracy punishable as conduct. of bin Laden and other al the benefit against Transnational Or- See Convention Qaeda Specification leaders. The ¶¶ Crime, ganized quoted p. art. 69 and Charge d-j. I addition, supra punishment cited n. 90. In charged This as codified and offense of such conduct under domestic criminal the provided comprehensive notice of both widespread agreement law reflects on this conduct issue and the elements of the principle. fundamental fact, In the was re- offense. Government subjec- quired prove objective both conspiracy is direct- Appellant’s charged tive elements. ly organization provi- akin to criminal Nuremburg in Arti- sions of the Charter objective
The elements include an actus by the IMT. implemented cles 9 and as reus, appellant’s agreement which is with also supra pp. See discussion 1203-05. We the of- bin Laden and others to commit readily object conspira- appellant’s fenses that of the find that conduct meets are agreement joined willingly military judge's pose 119. or commission instruc- joined conspiracy with the intent to fur- tions included in the elements of each of the 846, 850, 851, purpose. object the con- ther its unlawful Tr. seven offenses that are the 852, 854, 856, spiracy pur- appellant knew the unlawful 857. ¶¶ M.M.C., IV, 6(28)b, in a crim- the 2007 Part membership supra requirements conduct, p. applied by in- and as organization. Appellant’s inal judge duplicates required at trial also cluding agreement his with bin Laden (shared offenses, object for “Basic JCE” intent to perpe to commit the with others crime), trate a certain knowledge of and intent to further and “Extended (intent agreement, participate of that and JCE” in and further purposes unlawful acts, activity pur enumerated overt the criminal or the criminal commission of the pledging per- pose group). supra with and of a See 1211— including meeting pp. Laden, join- and then loyalty sonal to bin 12.120 Qaeda punishable by military
ing al Conspiracy-Type 1. Non-U.S. Laws an commission as offense law of armed conflict when committed. many The domestic laws of nations ad- conspiracy conspiracy-like dress con- Additionally, and like the conduct duct and include similar language. See charged providing support as material n. for the locations of documents terrorism, supra pp. see JCE 1210-15 and in this section. complicity supra pp. the offense conspiracy charged essentially Afghanistan, as co- before December perpetrator principal liability, or akin to “alliance in crime” was defined as “the aiding abetting, complicity, joining or theories of two or persons more commit- liability long of individual criminal recog ting specific unspecified felony or conflict, misdemeanor, joining equipment, nized under the law of armed fa- supplementary the domestic law of civilized nations. cilities or works of the said where, here, crimes, particularly provided regu- This is true that the alliance is continuous, voluntarily conspires accused and lar and even if it has taken agrees Qaeda’s al leadership place stage to com at the formation of crime or for separate Code, mit at seven Afghanistan least offenses a short time.” Penal (Oct. 7, 1976), against the law of armed conflict and with arts. No. Issue knowledge “Every of and intent to further No. Ser. individual shall be sentenced, purposes agreement, unlawful of that if felony even the for which knowingly commits various overt acts to the alliance was made has not been initi- 50(1). accomplish objective agree Afghani- some of that ated.” Id. at art. Current including loyalty ment pledging “uniting] to bin stan law criminalizes with anoth- Laden, joining Qaeda, providing person participate er in order to various services and resources to both. commission of offence.” Law [a terrorist] *80 Offenses, The mens rea element as against defined 2006 on Combat Terrorist Art. 2008). 950v(b)(28), § supra p. (July M.C.A. supra p. See also incorporates involving design perpetration 120. The 2007 M.M.C. an ele- as mon of one provided of the crimes for in the Statute enterprise persons ment "an of who shared a participation may take the where this form of purpose,” theory common JCE criminal or in, to, assistance or contribution the execution into the elements of the offense. Id. at Part plan purpose). Appellant of the common or IV, ¶¶ 6(28)b, supra p. 1223. The definition points properly out that the commis- requirements satisfies the actus reus for all judge granted sion the Government’s motion types (e.g. plurality persons, three of JCE of "enterprise language” strike from plan, design pur- existence aof common or Specification Charge upon of I motion from pose which amounts to or involves the com- counsel, change the trial this was made Statute, provided a mission of crime for in the objection appel- explanation or from without 109-113; participation Charge accused in the com- lant. Tr. Sheet. cantly destroy the fundamen- aiding impair or in terrorism or (discussing helping offense). constitutional, or Afghan political, an tal economic country a an in- social structures of or prohibits “association of Brazilian law which, giv- organization, ternational persons purpose for the than three more consequences en the nature or of such criminal activities.” SCOR undertaking acts, damage country a or may seriously 2001) (Dec. 27, at 11 Report S/2001/1285 organization, subject is international 288). Brazil, art. (citing the Penal Code punishment. (discussing Brazil- pp. See also laws). ian terrorism (July at 3 Report SCOR S/2006/527 2006) Penal (citing the German Code penalties for law has criminal Egyptian 1998). promulgated 129a as on Nov. join another to even a “anyone invites who aimed at the commission agreement mere provides punish- The law India activi- in connection with terrorist of crime anyone at- “conspires ment of who accepted.” is not ty, if his invitation even commit, advocates, abets, tempts to ad- (Dec. 21, at 4 Report SCOR S/2001/1237 knowingly or incites or facilitates the vises 2001) 88(b), 97, Arts. 98 of the (citing of, any act commission a terrorist act or Code). penalizes It also Egypt Penal to a terrorist act” as well as preparatory knowledge the exis- “anyone who has a a “[a]ny person who is member of terror- plan tence of a to commit such crimes gang organization, ist or a terrorist which ” to inform the authorities thereof.” fails in terrorist acts.... Terrorist involved Id. (Prevention) Act, Disruptive Activities Law, conspira- “criminal French Under 3(5). 3(3) §§ Part II ... cy ‘par- of a terrorist nature [includes] “ Indonesia, ‘conspiracy’ In a exists as group understanding in a or an ticipation persons agree soon as two or more preparing, purpose established for the commit a crime.” Penal Code of Indone- actions, of one or more material means sia, May art. 88. as amended ” acts.’ one of the aforementioned terrorist “conspire[s to commit various Whoever (Dec. 2001) at 18 SCOR S/2001/1274 punished shall be ...” Id. at art. crimes] 1996). July (citing Act 96-647 of “The Any knowledge of a person having conspiracy pur- criminal for the offense of conspiracy to commit ... [various] applicable pose planning terrorist acts is at a moment when the commission crime[s] only not within French territo- persons may prevented, still be said crimes ry country.” outside the Id. at but also deliberately give timely omits to ad- [who] (citing 18-19 Article 706-16 of the Code of notice thereof to the ... equate either Procedure). Criminal shall, if police, person, or to the threatened punishes anyone law who: German committed, crime be pun- whose aims or activities group forms ” .... at art. pp. ished Id. 164. See also towards of cer- are directed commission (discussing Indonesian laws specifical- tain criminal offenses not [but terrorism). ly partici- whoever terrorism] [or] “ Italy, person ‘organizing or direct- member, pates group such a as a ” *81 ing propose[s]’ an association which ter- an offense and if of- these [commits “ violence, can ‘without rorist be sentenced seriously fenses intended to intimi- are] Further, being committed.’ violence population, unlawfully coerce date the participation organization’ ‘mere in such an public authority a or an international they participated ... even if never ha[ve] organization through the use of force of force, signifi- prison in a violent act” could result a the threat use or to Dunham, Eliminating Code, sentence. Matthew Under the Japanese Penal “culpa- the Domestic Terrorist Threat in the Unit- bility conspiracy for acts of instigation or Study ed A Case on Eradication States: where the ultimate criminal act is not com- Brigades, the Red 107 Dick. L.Rev. pleted applied] [is under limited circum- (2002) (citations omitted). 160-61 SCOR Stenson, stances.” Tom Inchoate Crimes (Jan. 2002) Report provides: S/2002/8 and Criminal Responsibility Under Inter- ... Italy ranging a wide set of [has] Law, national at http://www.law. regulations rules and to counter ... ter- upenn.edu/joumals/jil/jilp/'articles/'1-1- existing legisla- rorism. addition to StensonJThomas.pdf For example, [t]he tion, Decree Law ... criminal- 374/2001 Subversive Activities Prevention Law al- financing izes the of both international prosecution instigation lows for aof homi- and domestic terrorist activities. Sec- political reasons, cide for even where no (“Provisions tion 1 relating conspiracy actually Stenson, homicide occurs.” at 11 for purposes of domestic or interna- (citation omitted). “Insurrection, assisting terrorism”) updates tional article 270- enemy, inducing foreign a nation to provides bis of the Criminal Code attack country, the home or waging pri- “anyone promoting, instituting, or- vate war are all simple crimes for which ganising, managing or financing organi- incitement or conspiracy bring them purpose propose sations whose is to acts about is sufficient to punishment.” incur purposes violence for the of terrorism (citing Id. at 11-12 Japanese Criminal subverting or for the democratic order Code, 129, 131, 134, 135, 138, 139, 140, Art. imprison- shall be liable for a term of (1978)). a principal “[W]hen offender ment, “anyone ... and that participating crime, commences the commission of a organisations aforementioned provision or collection punisha- of funds is shall be liable for a imprison- term of ble as ‘aiding abetting,’ ‘complici- or as ..., specifying ment that “the pursuit of ” (Dec. ty.’ Report SCOR at 7 S/2001/1306 terrorism shall also apply when the acts 2001). provision “[T]he or collection of are against foreign violence directed a funds alone is not punishable under the state, or an international organisation or Penal principal Code” when “the not does institution”. The same article 1 also commence the commission of a crime.” Id. contemplates the crime of “providing as- Pakistani law prosecution authorizes persons” sistance associated in article abetting terrorism and includes member- 270-ter of the Criminal Code.... ship specified groups. terrorist See su- Id. 5. On December the Italian pra p. 1200. Whoever abets an offense Government enacted Law No. punished, shall be if even the offence is not “introduced two types [punisha- new Code, committed. Pakistan Penal Part V Report conduct.” SCOR ble] S/2006/611 ¶¶ (Oct. 6, 1860); see also id. 2006). First, (Aug. “promoting, by Conspiracy §§ Abetment A setting up, organizing, heading funding conspiracy requires agreement criminal associations whose intent is to commit acts to commit an offense and an act done in of violence for the purposes of terrorism pursuance thereof one or more of the and international terrorism” became parties agreement. to such an Id. at Part Second, “supporting any crime. Id. one of 120A, § VA as inserted Law Criminal persons participate who in terrorist (Amendment) Act, of 1913. Conspir- VIII associations ... providing them with acy to take food, various actions hospitality, and of transporta- means tion or communication” of- State Government Pakistan is a crim- became new 121A, fense under Italian law. Id. inal offense. Id. at Part VI *82 however, offense, not (Amendment) Act, is an organization Penal Code inserted 1870). it was (XXVII in its activities when participating of to this crime. is a defense proscribed of Act. No. 95528-3 Federal Russian § 11 Act Ch. 11 Terrorism U.K. liability for cre- “increased December 12(1) 2000). of this Section (July Under manage- organizations, terrorist ation of commits an offence person chapter, “[a] to recruitment organizations, ment of such (a) proscribed for a support he invites and supply weapons groups, terrorist if— (b) not, or support crimes of a is organization, to commit persons training nature, financing to, money provision as well as restricted terrorist is not Report 12(2) organizations.” SCOR terrorist and under Section property” or other (Dec. 2001). Terrorist at 4 chapter: S/2001/1284 of this includes: activity if he ar- commits an offense person [a] 1) planning, prepara- organization, arranging in ranges, manages or assists tion, of terrorist ac- implementation meeting a which he knows managing or 2) action, to tion; to terrorist incitement (a) organiza- a support proscribed organiza- individuals or against violence (b) tion, the activities of to further tions, of material to the destruction or (c) to be ad- organization, or proscribed 3) the purposes; terrorist objects for belongs who or person dressed forma- illegal of an armed organization proscribed to a or- professes belong (criminal or- tion, association criminal ganization. group in order organized ganization), 12(1) Act Ch. 11 U.K. Terrorism action, also terrorist perpetrate 12(2) 2000), (July http://www. 4) action; the re- such participation legislation.gov.uk/ukpga/2000/ll/contents/ cruitment, armament, training, and use Kingdom in the United enacted. Courts 5) terrorists; funding of a known conspir- “offences of jurisdiction have over organization group or terrorist terrorist offence, ... acy terrorism] to commit [a to them[.] or other assistance offence, such inciting attempting such an Federation Federal Law No. 130- Russian counselling aiding, abetting, an offence 25, 1998), FZ, (July replaced art. 3 Re- such an offence.” SCOR procuring of Mar. Federal Law No. 35-FZ 2006) (June 16, (citing at 4 port definition terrorist (containing similar S/2006/398 17). 2006, § Act of Terrorism activity). law, “[c]onspiracy is de- Under Swedish D. Conclusion a decision to act in collusion with
fined as has made a “sub Government or an offer to undertake or person, another 32, that showing,” see n. stantial to incite attempt execute a crime or the (an including alleged, appellant’s conduct Report to do so.” SCOR person another AUEC’s) (Dec. 24, 2001); agreement with bin Laden and Swed. at 3 S/2001/1233 offenses, Code, May object §§ (through to commit the with Penal Ch. others amendments). “All acts constitut- further knowledge of and intent ing scope an offence within the agreement, of that purposes unlawful criminal law defined the international of the enumerated overt acts commission suppression of terror- conventions for meeting pledging per including are ... criminal offences Sweden.” ism Laden, loyalty to bin and member sonal Id. at 9. by mili Qaeda punishable in al ship as an offense tary commission Kingdom provides
The law the United conflict when committed. in a terrorist law of armed membership proscribed *83 commit specific statutory employed The scheme Solicitation to Murder of Pro- Persons, including by Congress Civilians, 2006 M.C.A. tected ... to Attack (AUEC in the common elements and ... to Attack Objects, Civilian ... conflict), stringent context of an armed commit Murder in Violation of the Law procedural safeguards, comprehensive War, ... to Destroy Property in Vio- factual determinations are consistent with War, lation of the Law of to commit Congress international not Terrorism, norms. did ex- acts of ... and to Provide authority ceed constitutional in labeling its Support Material for Terrorism^] in appellant’s “conspiracy” conduct de- Sheet, Charge in violation of 10 U.S.C. fining conspiracy. the elements of Our 950u, 950v(b)(l), 950v(b)(2), §§ 950v(b)(3), holding necessarily is limited to the matter 950v(b)(15), 950v(b)(16), 950v(b)(24), and AUEC, before us—the conduct of an 950v(b)(25). those terms are defined in the 2006 Specification II Charge states M.C.A., 23, 24, 53, see nn. who is a Appellant: non-state, member of a transnational ter- organization rorist in engaged armed con- an enemy [who is] alien unlawful com- flict with the United States. batant, did, in the context of and associ- conflict, ated with an from in armed X. AN SOLICITATION AS OFFENSE February through about in or TRIABLE BY MILITARY COM- about December at various loca- MISSION in Afghanistan, tions Pakistan and else- where, solicit, order, wrongfully induce Appellant asserts that the inchoate of- persons] [five advise named and oth- fense of solicitation recognized is not as a unknown, persons, er known and to com- law, war crime under international mit [the aforementioned offenses] punishable by thus is not military commis- preparing assisting prepara- Appellant sion. Brief for 25-26. tion of propaganda products, various in- The Government again argues that the cluding but not limited to the video “The authority ju- constitutional establish Destruction of the Destroyer American belongs risdiction commissions Cole,” propaganda products U.S.S. said political exercising branches their made, being intentionally designed, dis- powers. war The Government cites de- tributed and shown order to recruit scriptions of similar conduct as war crimes indoctrinate, personnel organi- to the “recruiting to include enemy] [the objectives Qaeda, zation and of al army,” and “distributing publications or organization, international terrorist declarations calculated to opposition excite solicit, order, induce, and advise said government to the federal or sympathy persons to commit [the aforementioned enemy.” with the Appellee Brief for with the offenses] intent said of- Winthrop, supra n. (quoting actually fenses be committed. 841). Charge Sheet. We next turn statu- Charge Speci- A. Solicitation —The tory definition of the solicitation offense. fication B. Solicitation under the 2006 M.C.A. Appellant, as an “in AUEC the context and 2007 M.M.C. conflict,”
of and associated with an armed charged Specification Charge Solicitation defined M.C.A. II with and convicted of: 950u as follows: *84 at 1277-78 and nn. F.Supp.2d [subject M.C.A.] to the 2006 Any person another or others at *18 and nn. 48-54. or advises 2011 WL who solicits of- or more substantive by one object punishable to commit offenses are These military by commission triable fenses commission as violations of the military shall, if the- offense chapter this under conflict, Specification and the law armed or com- attempted or advised solicited charged II Charge Charge II and were mitted, punishment with the punished be in accordance with the statuto- applied and commission of the of- for the provided ry requirements, provided manual fense, but, or if the offense solicited comprehensive notice of the con- appellant attempted, not committed advised is and the elements of of- duct issue military com- as a punished be he shall charged, the Government was fense. As may direct. chapter this mission under objective required prove to and did both Military Commis- 2007 Manual for The subjective elements. the elements of solicitation sions defines The actus reus of the offense is the “(1) solic- wrongfully That the accused as: solicitation, order, inducement or wrongful induced,
ited, ordered, person or advised a assist- through “preparing advice commit a substantive offense persons preparation propagan- of various ing commission; military by triable including not limited to products, da but that the offense That the accused intended M.M.C., the American the video ‘The Destruction of committed.” 2007 actually be ” ¶ Cole,’ IV, Destroyer 5b. to commit Part U.S.S. object offenses that are the of the solicita- solicitation, charged as instructed The objective include that tion. The elements judge121 military commission upon reus, 1—“alien un- actus common element constitutes an argued appellant, element,” p. enemy lawful combatant see are mindful that two inchoate offense. We supra nn. and common 1182 and have Congresses and two Presidents place conduct took “in to commit offenses element 2—that the agreed that solicitation in the 2006 and 2009 M.C.A. with an enumerated the context of and was associated conflict and are violate the law of armed supra p. armed conflict.” See 1188. military a law of war com- punishable specific is the required While the mens rea mission. offenses be committed. intent those Analysis addition, C. Specification Charge propaganda prod- II that the also stated object of the solicita- The seven offenses made, “intentionally designed, ucts were as the ob- specification tion are same to recruit distributed and shown order conspiracy specifica- ject offenses organiza- personnel and indoctrinate supra pp. 1224-25. Each of tion. See objectives Qaeda, an interna- tion and object as an these seven offenses is defined solicit, organization” tional terrorist and to military punishable by offense commission “induce, persons and advise said to commit M.C.A., by an in the 2006 when committed among Murder of Protected Persons” oth- in the context of an armed conflict. AUEC Hamdan, war. 1188-90; er offenses that violate the law of supra pp. see also See proven beyond judge's it be a reasonable doubt 121. commission instruc- must included, persons intended that known "You are fur- that the accused tions on this offense every element of proof [object] or unknown would commit ther advised that that the of- Specifica- Specification Charge the offense or offenses listed in fenses listed in the II However, Charge actually required. tion of II.” Tr. 860. occurred is not Law and International Inchoate Lia- ment of the Nuremberg proceedings and bility Bush, (cit- results.” n. at 2388 ing Assembly UN General Res. A/Res/ II liability Since World War inchoate (Dec. 95(1) 11, 1946); other citations omit- against peace genocide crimes have *85 ted). Qaeda’s We note that al ultimate recognized been as offenses under interna- goal, establishment of Caliphate an Islamic tional law. This is appropriate given the spanning Peninsula, the Arabian North Af- object seriousness and insidiousness of the Asia, rica and Qaeda’s renders al actions in offenses. pursuit of that akin goal aggressive war. Nuremburg The IMT at referred to The IMT’s disparate findings in the Against aggressive “Crimes Peace” or war defendants, cases of two Nazi publicist as supreme “the international crime differ- Julius Streicher and Head of the Radio ing only from other war in crimes that it of Propaganda Ministry Division Hans contains within itself the accumulated evil Fritzsche, analysis inform our punishing of whole,”122 and held that conspiracy incitement through propaganda under the to commit aggressive war was an offense law of armed conflict. 1 supra under the London T.M.W.C. Charter. the Far 36, East, 304, n. at 338. “General MacArthur ... convened When the IMT heard Streicher, an international tribunal of eleven the case of Julius pub- Allied the Nazi try twenty-eight nations to Japa- former lisher of the weekly newspa- anti-Semitic leaders, nese including prime Sturmer, four minis- per, Der there was no extant marshal____[TJhis ters and field towas treaty or prohibiting established custom be the sole international tribunal for the genocide or genocide. incitement to commit East, Far counterpart to Nurem- However, the IMT concluded “Streicher’s 123 berg.” subject juris- The court’s matter incitement to murder and extermination at diction Nuremberg, was similar to that at the time when Jews in the East were except against that Crimes charge Peace being killed under the most horrible condi- Bush, was even more significant. supra n. clearly tions persecution po- constitutes on 123, Horowitz, 123, at (citing supra 2375 n. litical and racial grounds connection 487). at None of the accused were acquit- with by War Crimes as defined the Char- ted, hanged, “seven were two were given ter, and constitutes a Hu- against Crime sentences, lesser and all the others re- manity.” Id. at 304. The IMT “linked ceived life sentences.” Id. propaganda Streicher’s with the war [subsequently]
“The United Nations crimes that had en- been carried out dorsed the doctrine parallel specific [of Crimes establish intent Peace], part general of a more requirement endorse- criminal He law.”124 was T.M.W.C., 36, 186; also, supra 122. Piccigallo, Japanese 1 n. see The on War Trial: Allied Birkett, Nuremberg Justice East, Norman Interna- Operations Crimes in the 1945-1951 Legal Nuremberg, tional Theories Evolved at (1979); Horowitz, Trial, Tokyo Solis The 1950 (1947) ("The 23 Inti. Aff. 322 first inter- 474). International Conciliation theory supreme importance, national which wag- evolved from the Trial is that the Pauli, Killing Microphone: 124. Carol ing, preparation aggressive initiation and When Broadcast Freedom Should Yield to Ge- crime."). war is declared to be a Prevention, nocide 61 Ala. L.Rev. 670 Metzl, (2010)(citing n.27 Jamie Frederic Bush, Supreme 123. Jonathan “The ... Crime” Rwandan Genocide and the International Law Origins: Legislative History and its The Lost Jamming, Radio J. Inti. L. Am. War, Aggressive the Crime 102 Colum. (1997)). 636-37 (2002) (citing Philip L.Rev. R. L. ming, Am. Inti. hanging.” “to death J.
sentenced (citation omitted). n. supra superior, 365. Fritzsche’s T.M.W.C. Dietrich, “a Otto Reichsleiter Fritzsche, a acquitted IMT Hans The Party the Nazi Leadership Corps of Ministry official Goebbel’s senior position until 1932. He maintained Popular Enlightenment Propaganda Party He was the Press collapse. weekly radio Id. at and host of a show. Chief, Chief, Press Hitler’s Press Reich prosecution argued Chief, Secretary in Ministry and State “incited and encouraged Fritzsche T.W.C., Crimes, n. deliberately Propaganda.” commission of War to arouse in the at 861. Dietrich was tried the NMT at falsifying news German *86 passions part those which led them 11-14 People of “The Ministries Case.” (cid:127) at the commission of Id. T.W.C., atrocities[.]” supra n. 60. He was convicted of However, the IMT reasoned: 337-38. Five: charges, two Count “War Crimes and official not position His duties were Humanity; Atrocities Against Crimes sufficiently important to infer that Against and Offenses Committed Civilian part originating took or formulat- he VIII, Populations” and Count “Member- campaigns .... ing propaganda [and] ship Organizations.” Criminal that Fritzsche sometimes appears [i]t T.W.C., 467, 576, 855, n. supra strong propagan- statements made The press periodi- Tribunal found his nature in his But the dists broadcasts. directives, “expressed purpose cal was to prepared not to hold Tribunal Jews, enrage justi- the against Germans they were intended to the incite German fy the taken and measures to be taken commit People to atrocities on con- them, any and to subdue doubts quered peoples, and he cannot be held to to the might justice which arise as a participant have been in the crimes persecution measures оf racial to which His aim was arouse charged. rather to subjected.” Jews were to be Id. at 576. popular support sentiment of Hitler II, Following the Na- World War war and the German effort. Assembly unanimously tions General Id. judgment suggests at 338. The adopted the Genocide Convention. See acquitting IMT’s “reasons for Fritz- supra n. 113. The Genocide Convention that, first, lay sche in the fact he lacked defined as: “genocide” or such necessary intent intent had not any following of the acts committed with been proved Tribunal’s satisfaction destroy, intent to in whole or in part, second, speeches his were not suffi- national, ethnical, religious racial or unequivocal in ciently calling direct or (a) Killing group, as such: members of people.” murder of Jewish Wibke (b) Causing the group; bodily serious Timmermann, Incitement in International group; mental harm to members Law, Inti. Criminal Rev. of the Red (c) inflicting on Deliberately group (Dec. 2006) (cita- Cross, No. bring conditions of life calculated to omitted). tions physical about destruction in whole its “Thus, the death sentence for [IMT’s] (d) in- part; Imposing or in measures acquittal sug- Streicher and Fritzsche births prevent tended to within the that, actionable, gested to be incitement (e) Forcibly chil- group; transferring genocide] required specificity [to commit group dren of the group. another and a link to the it direct actions for which II(a)-(e). Metzl, Id. art. Genocide Con- called.” Jamie Rwandan Genocide Law not punishable only geno- and the International Radio Jam- vention makes cide, offence, including also inchoate offenses join but rorist or to an association or conspiracy genocide, to commit and direct group, for purpose of contributing to public genocide, incitement to commit the commission of one or more terrorist regardless genocide acts of whether offences group.” association or the attempted. committed or even Id. at were 6(1). Id. at art. III(b)-(d). art. The Genocide Convention The similarities prohibition between the part jurisdiction became of the ad against solicitation and recruitment permanent hoc and international criminal European Terrorism Convention and so- courts. See n. 113. licitation as defined in the 2006 M.C.A. Akayesu In the Judgment, Trial the In- 950u, supra pp. charged ternational Criminal Tribunal for Rwanda here are manifest. The similarities in- (ICTR) emphasized the inchoate nature of clude the (“public provocation actus reus that, by declaring the crime “genocide to commit a public terrorist offence” and clearly category falls within the of crimes intent). message), and (specific mens rea public so serious that direct and incitement The OIC Convention Combating on In- to commit such a crime punished must be *87 Terrorism, 74, ternational see n. such, as even where such incitement failed recognized the importance of preventing to expected by result produce perpetrator.” combating terrorist by cooper- Prosecutor v. crimes Akeyesu, ¶ ICTR-96-4-T, (Judgment) Case No. exchange 562 ation and of regard- information (Trial Chamber, 2,1998). Sept. “[mjeans ing of communications and pro- paganda by utilized terrorist groups” and
Similarly, “public provocation to commit “arresting those accused of committing a terrorism” acknowledged pun- has been as being implicated terrorist crime or general ishable under principles of law rec- nations, ognized by assistance, collusion, civilized including by or- such acts either ganizations and individual nations. Article I, instigation, financing.” or at Id. Ch. 5(2) of The Europe Council Convention 4.1(b) II, Div. art. and 4.4(a)(emphasis add- Terrorism, on the (European Prevention ed). Convention) 2005) 16, Terrorism (May general principles recognized of law party mandates each to “public criminalize recognize civilized nations also inchoate provocation to commit a terrorist offence liability solicitation, for conduct akin to ... when unlawfully committed and inten- inducement, or advice to another to com- tionally, aas criminal offence under its mit Following summary terrorism. is a domestic law.” The European Terrorism arranged those laws from various nations “public provocation Convention defines to alphabetically. commit a terrorist offence” as: “the distri- bution, available, or making otherwise of a Type Laws Solicitation — message public, with the intent to 2001, Before Afghan December under incite the commission of a terrorist of- law, organize it was a crime to or encour- fence, conduct, where such whether or not age join another to an organization whose offences, directly advocating terrorist nullify aim is to disturb or “one of the danger causes a that one or more such accepted politi- basic and national values in may offences be committed.” Id. The Eu- cal, social, economic or cultural spheres of ropean Terrorism also man- Convention or propaganda State makes for its passage legislation dates prohibiting “[rjecruitment it, by extension or attraction to terrorism,” whatever for defined as may it Afghanistan “means to solicit another means be.” Penal person to commit (Oct. 1976). participate Code, or in the commission of a ter- arts. Cur- “if “recruiting] punishable crime even no conse- law criminalizes is Afghan rent (cit- to in or participate quence in order therefrom.” at 11 person another resulted Id. act],” carry helping Code, or ing out terrorist art. 95 amended Egypt [a Penal complete commis- any terrorism). to way order Act on No. 97 of 1992 act. sion Law on Combat of a terrorist “criminalizes incitement French law Offenses, (July art. 19 Terrorist advocacy of terrorism.” Report SCOR 2008). 2006) (July (citing at 3 Act S/2006/547 law criminalizes the “associa- 24). Brazilian “Article 23 art. defines the persons three than for tion of more incitement, range for such of means used activities,” undertaking criminal purpose of orally public place, which can occur new members and the “recruitment on material written accessible to fall would under the defi- groups terrorist public.” Id. “Incitement terrorism is Report nition this crime.” SCOR if not in an punishable even it has resulted (Dec. 2001) (citing at S/2001/1285 offence.” Id. Brazil, 288). art. Brazil- Penal Code of law, “Public Incitement Under German punishes “support ian to an asso- law also Crime,” provides, an offense that is committee, ciation, entity or class party, in a publicly, meeting “[w]hoever goal change the current group whose through writings, dissemination of [and Law, Rule of regime or of the either act, other incites unlawful shall media] through threat.” violent means or serious punished Report be as an inciter.” SCOR (Aug. Report SCOR S/2006/680 2006) (July (citing Ger- S/2006/527 2006) National Law of (citing Security *88 § man 111 as on promulgated Penal Code 16). Dec. art. to “[incitement 13, 1998); (citing Nov. see also id. at 3 any general” the commission of crime in 30(1)). §§ German Penal Code It is (citing Brazilian law. Id. at 9 violates in this context the in- “irrelevant whether Brazil, 286). art. Penal of “[P]ublic Code not.” citement is successful or Id. at (or glorification) any of crime or apologia 111). § (citing Penal Code German “Who- (citing the prohibited. criminals” is Id. publicly, meeting ever in a through or 287). Brazil, art. Penal of Code writings, approves dissemination of of cer- punishes criminal law Egyptian promot- tain enumerated unlawful acts in a manner ing a act: terrorist disturbing that is of capable peace, means, writing any or speech, other subject punishment, ... this includes directly or any person indirectly pos- or urging glorifying necessary terrorism or as writings, sessing acquiring writings, or justified.” (citing Id. German Penal any printed recordings materials or 140(2)). Code or promote kind that advocate [terror- punishes The in India law whomever or oth- viewing for dissemination ism] “advocates, abеts, advises or incites or ers, anyone possesses or who or ac- of, knowingly facilitates commission quires any recording means of printing, any preparatory or that is act or act to a broadcasting used or intended terrorist temporarily print, even Disrup- be used act.” 1987 Terrorist and terrorist any (Prevention) (1987 or the afore- record broadcast tive Act TA- Activities ¶ 3(3). mentioned. DAPA), II, pt. The 1987 TADAPA defines as “i. the communication or “abet” (May Report SCOR at 10-11 S/2006/351 any person 31, 2006) association with or class Code, (citing Egypt Penal art. 86 assisting any persons engaged as who is by Act No. 97 of 1992 on amended terrorism). ...; pass- Incitement ii. the [and] of a terrorist manner terrorists on, of, ing publication or ... or distribu- cites or directs others under authority his crimes). of, any tion or matter to commit document obtained ¶2(l)(a). I, pt. from terrorists.Id. The law in Japan provides: when an act of The Penal of Indonesia contains terrorism which also Code constitutes a criminal offence stop recruiting two sections to of terror- such as committed, homicide is First, the incitement of “[a]ny person orally ists. who or in such an act prosecuted can be writing to commit a either as public pun- incites “incitement”, an act, ... or an “accessory- ishable violent action addition, ship,” ... disobedience, public authority other statutory either to a provision insurrection, or to the incitement of insti- official a statutory pro- order issued under gation foreign aggression or assis- vision, punished____” shall be SCOR Re- tance to an enemy prohibited]____ [is (Dec. 2001) port at 6 (citing [T]he incitement of such offences as ar- S/2001/1245 Indonesia, son, Penal Code of II homicide, Book on public [and] disturbance Crimes, ..., Against Ch. V on Crimes the Pub- purpose with the promoting, sup- 160). Order, Second, lic “[a]ny person art. porting or objecting political to a ideolo- by one attempts who of the means ... gy or measure---- incitement of [T]he crime, shall, induce others to commit a if it the use of explosives purpose with the does not punisha- result the crime or a disrupting public safety harming an- thereto, attempt ble punished.” be Id. at body other’s or property prohibited]. [is (Penal Indonesia, Code of Book 11 on (June 16, Report SCOR at 3 S/2006/402 Crimes, Ch. V on Against Crimes the Pub- 2006) (Penal Code, 61, 62; arts. Penal bis). Order, lic art. Republic of Code, Subversive Activities Prevention Indonesia, Regulation Government in lieu Act, 38-40; Act, arts. Explosives Control Legislation Combating No. on 1/2002 4). art. The Japanese Criminal Code Terrorism, Criminal Acts of criminalizes “only assigns culpability for acts of con- assisting, facilitating, inciting terrorist spiracy or instigation where the ultimate *89 (Oct. 2002). §§ acts. Id. at 11-15 criminal act completed is not under limited prosecution circumstances ... [such as] law, Italian Under incitement to commit for instigation political of a homicide for an act of punishable, terrorism is but must reasons, actually even where no homicide genuine a inducing involve risk of someone Stenson, occurs.” at 11-12 (citing Shigem- to commit Report the actual crime. SCOR Dando, itsu Japan; The Criminal Law 2006). (Aug. at 3 The incite- S/2006/611 (B.J. trans., The General Part 222 George, successful, ment itself need not be nor the 1997)). “insurrection, Similarly, assisting crime actually committed. Id. A second enemy, ... waging private war [and] just set of measures adopted after the all simple are crimes for which incitement in bomb attacks London in 2005 added or conspiracy bring to about is suffi- them terrorist training recruitment and to the punishment.” cient to incur (citing Id. list of terrorism crimes. Id. at 4 (citing Code, Japanese Criminal arts. Code, Italian (July Criminal art. 270 (1978)). 134,135,138,139,140, 141 2005)); Sliedregt, Elies van European Ap- Terrorism, proaches Fighting to 20 Duke The criminal punished law of Pakistan Comp. J. Inti. (citing terrorism, L. abetting including membership 270); Italian Italy, Criminal Code of art. groups. of terrorist supra p. See Code, see also Italian Criminal (citing arts. 39^40 Report SCOR at 6 S/2001/1310 (Jan. (heightened 10, 2002)). penalties anyone for who in- Whoever abets offense accomplice crime. Each abetting not if the offence is even punished, shall be according §§ to the intent judged 107- be Penal Code shall Pakistan committed. 1860). him (Oct. sup- to or negligence Recruitment or the attributable is an offence. groups terrorist port for her. (Jan. 10, at 6 Report SCOR S/2001/1310 (Dec. 24, at 3 Report SCOR S/2001/1233
2002) Act of Anti-Terrorism (citing The 2001) original). response (emphasis 1997). Security from the UN question incite- broadly criminalizes country Council, your law Russian “what offences activity and terrorist engage (i) to ment to terrorist recruitment prohibit group. See su- a terrorist to recruitment responded, person groups?” “[a] Sweden Act. No. Federal (quoting pra p. 1230 urges attempts or otherwise publicly who Federa- 2001 and Russian Dec. 95528-3 act a criminal people entice to commit to 130-FZ, (July art. 3 Law No. tion Federal inciting rebellion. can be sentenced Federal Law No. 25, 1998), replaced orally, through committed The act can be 6,2006). of Mar. 35-FX messages publication or other law, “membership in an Spanish person at 5. “A who recruits public.” Under Id. and or- groups group or terrorist comparable armed service people for offense, as a criminal is defined ganizations authority can of the Government without others, conspiring or inciting ... is] [as recruiting.” Id. for unlawful be sentenced of ille- these offenses to commit purposing under the com- Kingdom, In the United Cuesta, de la José Luis association.” gal another it an offense to incite mon law is and the Legislation Penal Anti-Terrorist Report to commit an offense. SCOR Experience Spanish Rule Law: 2006). (June 15, “There is at 3 S/2006/398 519) ¶ 515.2, 516.2, 3.2, (2007), (citing Arts. attempted to be no need for the offense org/IMG/ http://unvw.penal. Id. 1 of the Terror- committed.” Section Act Organic JLDLCTerrorism.pdf. a crimi- provides that it is ism Act “exalting terrorism” modified No. 7/200 nal offense: Code, art. in Penal an offense directly or which publish statement justifica- “any praise or punishable makes encourages others to indirectly incites or of those in- offenses or tion of terrorist if, at the of terrorism commit acts through any committing them volved in time, encourage the defendant intends or broadcast. expression public form of ..., or is reckless as terrorism acts that also covers Exalting terrorism encouraged. so persons will be whether discredit, humiliate the scorn or serve to encouragement includes Indirect *90 offenses, families their victims of terrorist specified of the of terrorism glorification ¶ (citation 7, omit- 4.4 Id. or relations.” offences, in- reasonably can be where it ted). glorified that is ferred that the conduct 23, 4, the of Swedish Chapter section circum- existing in should be emulated provides: Penal Code stances. only on imposed not punishment shall be Id. at 3. crime but committed the person who “ law, incitement ‘[d]irect [to U.S. Under byit ad- anyone who furthered also on crimes against peace, crimes commit] financing). person A (e.g., or deed vice long has humanity and war crimes’ against shall, if perpetrator regarded not as the punishable recognized as offense been person another he or she induced FM 27-10 by military commission.” act, insti- sentenced for commit the be ¶ military commissions Civil era aiding and War of the crime or for gation convicted individuals of violations of the to rebellion” or ulation] to “incite to acts of by inciting, of soliciting, law war or encour- insurrection,” 160, see S.O. p. 453-57 aging others to violate the law of war. (1862) (E.Ellis); (6) “[i]nciting insur- Headquarters District of Central Missouri by making circulars, rection” speeches, 17, issued General Order No. Section II and other communications to “arouse sen- persons stated that “all who have or shall hostility” timents of the United knowing” encourage guerillas future “in Similarly, States Government.”126 unlaw- their nefarious will deeds be arrested and fully recruiting for enemy army was an kept by military close confinement until by military offense tried commission.127 commission or other court.”125 In response to a Security U.N. Council following examples are illustrative (2005), (1) resolution 1624 the United States of falsely such offenses: assuming “the a military character of officer” listed three U.S. measures to prohibit and then using such assumed character to “incite prevent incitement to commit terrorism hostility against others to commit acts of stating: contrary the United States ... to the laws (1) criminalization of solicitation to vio- cases,” 28, and customs of are in like S.O. lence, conspiracy, advocacy seditious (1862) (J. (2) Owen); pp. 406-27 aiding, of the overthrow of Government and assisting, and inciting damage others to criminalization of certain “inchoate property, p.
railroad
see S.O.
457-64
crimes” that permit prosecution
pre-
of
(1862) (W.
(3)
Petty);
“[ijnciting unlawful
paratory acts to substantive criminal
warfare”
“inciting], inducting]
pro-
conduct,
(2)
terrorism;
including acts of
curing] persons
up
to take
arms and com-
designation of
hostility against
organizations
mit acts of
...
terrorist
contrary
States
to the laws and customs of
resulting legal consequences;
cases,”
war in like
p.
see
G.O.
(3) making
inadmissible
the U.S.
(1862) (E.
(4)
Wingfield);
“[violation
aliens who have either incited terrorist
the laws of
“inciting]
per-
war”
certain
activity with the intention to cause death
sons unknown to make an armed attack
bodily injury,
or serious
or endorsed or
upon
dwelling-house
aof citizen of
espoused
activity,
persuaded
terrorist
Missouri” with the intention that
occu-
espouse
others to endorse or
terrorist
murdered,
pants be
p.
see G.O.
activity.
(1862) (J.
(5)
Barnes);
“[violations
(June
2006).
SCOR
at 3
of war by
publication”
pam-
laws
S/2006/397
(Feb. 3, 2006);
phlets
See also SCOR
designed
and articles of information
S/2006/69
enemy
15, 2004);
“comfort the
and incite
pop- SCOR
(Apr.
[the
SCOR
S/2004/296
p.
125. G.O.
281-82
Compilation
in H.R.
in The War
the Rebellion: A
found
Sess.,
Cong.,
reprinted
Doc. No.
55th
3d
Records
the Union and
Official
Confed-
Compilation
The War
the Rebellion: A
Armies,
II,
(Civil War,
erate
Ser.
vol. VIII
Ser.
Records
the Union and
II,
8).
Official
parte Milligan,
Confed-
vol.
See also Ex
71 U.S.
Armies,
II,
War,
II,
(Civil
erate
Ser.
vol. I
Ser.
(1866) (revers-
4 Wall.
*91
id. at 186-226 describing law, treaty customary law, international (IMT war), Germany’s aggressive 224-26 general principles recognized law Judgment, Law discussing “The as to the by nations, civilized conclude that we Common Plan or to in Conspiracy” engage Government has a “substantial made show war). aggressive eight The IMT found ing,” supra public see that n. solicita One, guilty conspiracy defendants of Count tion, inducement, or advice to commit engage in aggressive war. Id. at 366- charged object (e.g. of the offenses to at protected tack persons property Similarly, appellant’s incitement conflict, and ef- violation of the armed laws in support Qaeda terrorism, forts Laden and al bin commit or to recruit members justify the killing intentional for or civilians otherwise indoctrinate members in destruction of property organization) their based an international terrorist vio solely upon nationality Moreover, their or physical lates international norms. Con States, presence in the United and his did not gress scope exceed of its con equate actions to conduct and intent akin authority punish stitutional to define and punishable nations, to that Terror- genocide. by offenses under the law of mak ism, as by ing conduct, advocated and em- such appellant when committed ployed Qaeda, constitutes modern AUEC the context of or associated with conflict, present incarnation the insidious evils punish a non-international armed aggressive war genocide, by military and exhibit able commission.128 Generally community 128. See The Preamble of the Rome international as a whole must not ICC, ("... go unpunished of the prose- Statute n. 51 their and that effective Mindful children, during century by taking that this millions of cution must be ensured measures at enhancing women men have been victims of uni- the national level and interna- maginable deeply cooperation, put atrocities shock tional that Determined to an end humanity, Recognizing impunity perpetrators conscience these grave peace, security preven- such crimes threaten crimes and thus to contribute world, ”) well-being Affirming (emphasis origi- tion of such crimes ... nal). most serious of concern to crimes *93 1242 implication opinion of the Court’s is that AMENDMENT ISSUES
XI. FIRST
speech
protected
otherwise
can underlie
he was convicted on
asserts
Appellant
support
charge
overt act in
of a
of [18
speech in
of
political
of
violation
the basis
2339B,
if done in the manner the
U.S.C.]
He argues the
the First Amendment.129
Nevertheless, ap-
Court described.” Id.
prosecution
“bars
First Amendment
pellant maintains that
the Government’s
in a
argument except
few narrow
political
pervasive exploitation
thoughts,
]
“[his]
[
circumstances,
as incitement.” Brief
such
beliefs,
as incriminating
ideals”
evidence
[ ]
he
And
avers this case
Appellant
for
mil-
special
warranted
instruction from the
not
to the level
incitement.
does
rise
judge
itary
“political
commission
that his
not
First
claiming
states he “is
Appellant
battlefield,”
on trial.”
(citing
on the
but
beliefs were not
Id.
Unit-
rights
Amendment
(2d
Salameh,
were
charges
once
filed
ed
v.
152
112
asserts
States
F.3d
him,
speech
Cir.1998)).
foreign political
protect-
his
is
by the First Amendment.
Id. Should
ed
below,
For
reasons
we
discussed
he
no
find
has
First Amend-
this Court
disagree. We hold the First Amendment
rights
appellant argues
personally,
ment
conduct,
appellant’s
does
apply
not
production
“The
prosecution
that his
for
did,
it
not
if
the First Amendment was
Destroyer
American
Destruction
Further,
military
we
violated.
hold
vio-
Video]
Cole” [hereinafter
U.S.S.
in
in-
judge
commission
did not err
his
it
the First Amendment because
lates
struction to the members.
chills the dissemination
information
Finally, appel-
available
citizens.
U.S.
A. Discussion
judge
lant asserts the
commission
provides
The First Amendment
in failing
properly
instruct
erred
“Congress
that
shall make no law
on the standard for incitement or
members
abridging
speech.”
the freedom
U.S.
protected
probative
speech
on the
value
I. It
that
Const. Amend.
is well established
evidence.
as
phrasing
“the unconditional
of the First
Following
Supreme
Court’s decision
not
protect
Amendment was
intended to
Project,
v.
in Holder Humanitarian Law
States,
every utterance.” Roth v. United
U.S.-,
130 S.Ct.
177 L.Ed.2d
1304, 1 L.Ed.2d
354 U.S.
77 S.Ct.
(2010),
sought
appellant
(1957).
supplemental
leave to file a
brief.
granted
The Supreme
specifically
Court has not
Appellant acknowledged
the Court’s
speaking
pro-
held a noncitizen
abroad
“suggested
opinion Holder
that ‘inde-
fact,
tected
the First
Amendment.
advocacy’ can be
pendent
distinguished
Bush,
v.
Boumediene
553 U.S.
advocacy
from
‘in coordination
or at
”
(2008),
S.Ct.
L.Ed.2d
organization.
the direction of
a terrorist
Kennedy wrote that before that
Justice
Supplemental
on Holder v.
Brief
Humani-
decision,
the Court “has never held
Project
Appellant
(citing
tarian Law
for
2723).
noncitizens detained
our Government
Holder, 130
S.Ct.
Given the Su-
territory
country
over which
main-
another
preme Court’s determination that Con-
sovereignty
rights
jure
tains de
have
lawfully prohibit
could
con-
gress
latter
Boumediene,
duct,
under
appellant
that the clear
our Constitution.” In
“concede[d]
III,
Appellant
Reply
Charges
used
129. Brief for
Brief for
of The Video was
I
Appellant
Although appellant
7-10.
focuses
as
Amend-
well. We will address the First
Charge
grounds
on
II for solicitation
applies
charges.
ment
as it
to all three
issue
argument,
First
evidence
his
Amendment
*94
the Supreme Court concluded the constitu-
“privilege
from the
litigation.”
Id. at
484,
privilege
added).
tional
corpus pursuant
habeas
S.Ct. 2686 (emphasis
In
Boumediene,
I,
9,
to Article
Section
Kennedy
Clause
extends to
Justice
discussed
another case
Bay.
involving
detainees held at Guantanamo
American
Id.
citizens
771,
invoking
rights
of the Fifth
important
S.Ct. 2229. It is
and Sixth
note,
Amendments to
trial,
indictment and
opinion
I,
jury
that
was limited to Article
Covert,
487,
Reid v.
880,
351 U.S.
9,
76 S.Ct.
Section
Clause 2 and did not address
(1956),
If the part considered country to be with this Americans except all the world rights on States community. See United it, the same must defending engaged *95 Williams, 279, 194 U.S. Turner v. civil-rights ex rel. companion true of be 719, 292, L.Ed. 979 limited Amendments, of them is S.Ct. for none (Excludable to First terms, or as alien is not entitled territorially by express its not “he does rights, a construction would because Amendment persons. Such ir- these military occupation to whom during people one of the become mean elements, guerrilla by our Constitution enemy are secured things reconcilable re- wolves” could forbidden attempt and “were to enter fighters, Judiciary law”). to assure these Amend- language the American quire press, and speech, “person” words freedoms with the them ments contrasts Amendment, First Fifth and assembly as in the in the “accused” used Second, in the regulating procedure arms as right to bear Amendments Sixth “unreasonable” security against in criminal cases. Fourth, as in the and seizures
searches
265-66,
The Court
to a who class not.131 community or who have other- national Amendment, ment, Revenue Claus- Verdugo-Urquidez, Sixth
130. See States v. United Constitution. es of the 494 U.S. 110 S.Ct. (1990). arose L.Ed.2d 222 The Insular Cases (The Court they S.Ct. 1056 before became Id. at from U.S. territories Verdugo-Urquidez, distinguished cases Supreme six states. The Court Boumediene involuntarily, the United States cases who was in also the Insular cases. The discusses held, "that aliens upon where the Court involving Amend- relied cited issues Fifth dealt with case, appellant, In this a citizen of inciting or producing imminent lawless Yemen, prepared The in Afghani Video 9-11; action. Brief for Appellant Reply Qaeda’s following stan al attack on the Brief 9. USS COLE in 2000. The Video was First, we must examine the Qaeda shown to recruits and trainees in M.C.A. to determine if it facially over-
Afghanistan, and it
widely
was and is also
broad. To review a
challenged
law
on
available on the Internet. There is no
First
grounds,
Amendment
Supreme
that,
Video,
question
when he made The
applies
Court
the overbreadth doctrine.
appellant had no lawful connection with
Williams,
States v.
553 U.S.
*96
only
the United States. His
subsequent
1830,
(2008).
128 S.Ct.
particularly a law directed at conduct so
Military
B. The
Commissions Act and
antisocial that it has been made crimi
the First Amendment
nal—has obvious harmful effects. In or
balance,
der to maintain an appropriate
Assuming arguendo appellant is entitled
we
vigorously
have
enforced
require
Amendment,
protections
of the First
ment
that a statute’s overbreadth be
we next address the First Amendment
substantial,
only
not
in an absolute
challenge to
Appellant
the M.C.A.
con-
sense, but also relative to the statute’s
tends his speech
political speech
was
plainly legitimate sweep.
protected by
thus
the First Amendment.
Ohio,
292,
(citations
Brandenburg
v.
Id. He cites
128 S.Ct.
395 U.S.
1830
omit-
ted).
444,
1827,
(1969)
overbroad,
89
A
void,
S.Ct.
23 L.Ed.2d
law is
430
and hence
and United States v.
Aguilar,
if it
specifically
883 F.2d
“does not aim
at evils
(9th
662,
Cir.1989),
684
control,
and states the facts within the allowable area of state
of the
ease
hand do not
contrary
rise
the level but on the
sweeps within its am-
See,
enjoy
Amendment);
States,
rights.
e.g.,
certain
Wong Wing
constitutional
v. United
Doe,
202, 211-212,
Plyler
228,
v.
238,
977,
U.S.
163 U.S.
16 S.Ct.
Kwong
Colding,
Hai Chew v.
344 U.S.
kins,
356, 369,
118 U.S.
6 S.Ct.
(1953) (resi-
73 S.Ct.
commit Thus, not we find no (3) sweep, is overbroad. terrorism; soliciting for support facial First violation. of- Amendment persons to commit these same various fenses. arguendo sup- Assuming the M.C.A. specifically
The 2006 M.C.A.
addresses
appellant’s political speech, we will
pressed
fundamental
to a Government’s
offenses
scrutiny to
subject
the M.C.A.
strict
to
duty to those
governed protection
first
—
“fur-
if
such restrictions
determine
Charges
II,
conspir-
its citizens.
I and
nar-
compelling
interest and
ther[ ]
[are]
clearly
are
acy
charges,
and solicitation
to
interest.”
rowly tailored
achieve that
However,
speech-based offenses.
as
Election
See Citizens United v. Federal
Rahman, appellant
Second Circuit held
—
Commission,
876,
U.S.-,
130 S.Ct.
for
prosecution
was “not immunized from
(2010)
899,
753
Federal
(citing
175 L.Ed.2d
merely
speech-based offenses
because
such
Right
v.
Election Comm’n Wisconsin
through
commits them
the medium of
one
Inc.,
449, 464,
551
127 S.Ct.
Life,
U.S.
speech....
appellant’s]
political
[If
(WRTL)).
(2007)
2652,
L.Ed.2d
168
329
crossed
into criminal so-
speeches
the line
Supreme
categorically
Court has
licitation,
activity
procurement of criminal
speech to be
types
declared several
laws,
conspiracy
prosecu-
or
violate
unprotected under the First Amendment.
Rahman,
permissible.”
tion is
“[T]he constitutional
distinguish
from incitement to imminent
of free speech
press
and free
per
do not
mit a
lawless
proscribe
State to forbid
action.” Id. at
or
advoca
89 S.Ct.
(footnote
cy
omitted).
of the use of force or of law violation 1827
Rahman,
chest,
Circuit,
barrel to President Mubarak’s
The Second
Carry
criminal
that
on God.
out
killing
Depend
host of
statutes
him....
examined a
could be committed
provided
require
a crime
operation.
It does not
a fatwa
this
It
F.3d
116-117.
speech alone. 189
training,
it.
you
ready
...
but do
are
may
that
Government
well established
regarding
ahead.” Id. In consultation
Go
steps to
preparatory
criminalize certain
Head-
bombing
of the United Nations
action, even
when
criminal
wards
another, “Yes, it’s a
quarters, Rahman told
use of conspiratorial
of the
crime consists
must,
In
duty.”
discussing
it’s
Id.
exhortatory words.
Id. The Second
or
UN,
bombing
he advised that
it
Government,
pos
who
Circuit held
Muslims,”
would be
for
but added
“bad
conspiratorial planning,
evidence of
sessed
they
plan
destroy
or
that
should “find
buildings
tunnels
until
“need not wait
damage
to bomb
inflict
or to
people
have
killed before
been bombed
Rahman’s
Army.”
speeches
American
Id.
conspirators.”
Id. at 116.
arresting the
ideas,
expression of
simply
were not
explained:
The Rahman Court
instances constituted the
but
some
political speech
that
Notwithstanding
wage
crime of
war on the
conspiracy
are among
exercise
religious
States,
solicitation of attack on
jealously guarded by the
activities most
installations, as
the U.S.
well
Amendment, one is
immunized
not
First
Egyptian
President.
murder of
such
prosecution
speech-based
from
Circuit concluded “words of
Second
merely because
commits
offenses
one
instruct, solicit,
this
nature —ones
through
political
the medium of
them
crimes
persuade
to commit
of vio-
others
speech
religious preaching. Of
pro-
the law” and are not
lence—violate
course,
vigilant
courts must be
to insure
tected
the First Amendment.
Id.
are not
prosecutions
improperly
Sattar, a
v.
federal
United States
expression
unpop-
the mere
based on
guilty
district
found the defendant
court
But if the
ular ideas.
evidence shows
Brandenburg
test in
despite his claims the
crossed the line into
speeches
that the
*99
not
was
met.133 The defendant
Sattar
solicitation, procurement
criminal
charged
drafting and
was
disseminat-
activity,
conspiracy
criminal
or
to violate
laws,
ing
is
a fatwah to be issued under Rahman’s
prosecution
permissible.
the
“Fatwah
name that was entitled
Mandat-
following
falls
language
Id. at 117. The
Everywhere”
ing the
of Israelis
Bloodshed
First
protections
outside
every-
that
called on “brother scholars
talking
Rahman
Amendment: When
was
part
where in
to do
the Muslim world
their
“make
killing
about
President Mubarak:
urges
and issue unanimous fatwah that
up
by turning
his rifle’s
with God
installations,
murder,
348,
(S.D.N.Y.2003),
conspiracy to
133.
374
F.Supp.2d
272
Stewart,
(2d
aff’d,
cоnspiracy
to bomb. The
United States v.
1249
Muslim nation to
and to kill
fight
Jews
tained similar
against
specific
threats
Sattar,
they
them where ever
are.”
large group
category
or
of targets
op-
374;
F.Supp.2d at
see also United States
posed merely
against
threats
specifically
(2d Cir.2009)
Stewart,
v.
Sattar, not limited to a target was The Video is a First named individual. of the need for specific, raised no issue intrinsically related of and integral part instruction. Pursu- Amendment defense hold of terrorism. We commission M.M.C., II, Part R.M.C. to the 2007 ant protected by the is not appellant’s speech 920(f), plain the issue is waived absent speech, but political Amendment First p. (explaining plain error. See integrally tied to speech unprotected instructions). As noted rule for error activity. unlawful criminal above, no Amendment appellant has First offenses, charged thus right to commit the Chilling Effect on U.S. Potential C. to have the instruction right he has no Citizens In review of to the members. provided that argues prosecution Appellant record, error, we find no let the entire chilling a has creation of The Video his error, military commis- plain alone in their exercise of citizens effect on U.S. a judge’s sponte provide failure to sua sion of information. to dissemination right defense instruction. First Amendment In Citizens 11-14. Appellant Brief for United, Supreme 180 S.Ct. that it was Assuming arguendo,
Court declared: of a “constitu error since the instruction is use its full seeks to When Government dimension,” is law, we will examine the tional the criminal power, including Russell, 411 person may get his or v. U.S. command where sue. United States or what distrusted her information L.Ed.2d 366 93 S.Ct. hear, it uses may or she not source he (1973). Supreme The Court has stated thought. This is censorship to control proposition a defen general “[a]s Amendment con- The First unlawful. entitled to an instruction as dant is to think for ourselves. firms the freedom exists recognized defense for which there not ad- does Appellant’s prosecution jury to sufficient for a reasonable evidence citizens to versely rights affect the of U.S. favor.” Mathews v. United find in his information. The Video is receive such States, 58, 63, 108 S.Ct. 485 U.S. on the Internet and readily available (1988). Ninth The Circuit L.Ed.2d Possession foreign languages. numerous some evidence found that there is “[w]here criminalized viewing of The Video is not speaker or the purpose support material providing the M.C.A.— are to ideas tendency of his words directed prohib- that is for terrorism is the conduct consequences remote from commis ac- Nothing prohibits ited. M.C.A. act, on of the criminal a defense based sion to information such as Video. cess legitimate is a mat the First Amendment jury’s ter for the consideration.” United Judge’s Military In- D. Commission (9th Freeman, 761 F.2d States v. structions Cir.1985). estab The Freeman decision asserts the Appellant *101 lished, a threshold for a First Amend as judge to instruct commission failed instruction, jury ment that there be “some Amendment defense members of a First purpose that the defendant’s evidence” only if could be convicted appellant effect of his words was “remote” likely likely bring to The was intended and Video A the commission of the crime. First from illegality. imminent specific about need not Amendment defense instruction on raised for the first time This issue is are more than objection given when the words made no to be appeal. Appellant
1251
advocacy
only
but are
time
if the
meant to
supporters
promote
mere
“so close
groups’
to
nonviolent ends.
to a substantive evil as
purpose
Id. at
of the crime itself.”
part
become
Holder,
552.135 We find The Video’s message to be more advocacy,
than mere above. discussed E. Conclusion message The The Video was an incite- activity. ment to imminent lawless A Supreme Court’s observation First defense Amendment instructiоn was Holder is relevant instant case: not required. simply disagree with the con- [Plaintiffs XII. 2006 M.C.A. AND BILL AT- OF judgment Congress
sidered and the TAINDER that providing sup- Executive material designated a port foreign terrorist states that Appellant Military Com- ... organization bolsters terrorist is a missions Act bill of attainder because of that That organization. activities has, M.C.A., Congress through the 2006 however, signifi- judgment, entitled to unconstitutionally as an identified him weight, persuasive cant and we have evi- him him punished depriving AUEC and us to enjoyed dence before sustain it. Given the of “previously rights.” Brief for Appellant security interests in 30-36. sensitive national stake, foreign political affairs at Legislative A. Bills of Attainder and adequately have branches substantiated Analysis that, their determination to serve in preventing
Government’s interest
ter-
“legislatively
A bill
attainder
rorism,
necessary
pro-
it was
prohibit
guilt and
punishment
determines
inflicts
support
material
form of
viding
upon
pro
an identifiable individual without
advice,
training, expert
personnel, and
protections of
tri
judicial
vision of the
136
foreign
groups,
analysis necessarily requires
services
terrorist
even al.”
“The
Fleschner,
"appellants
illegal
United
98
See also
States v.
instructed
aliens on
155,
(4th Cir.1996)(The
F.3d
158-159
court
sup
how
to cross the
and where
border and
supporting
held
was no evidence
there
First
plied
sanctuary
contacts
them
noting
Amendment
instruction
defen
inextricably
speech
with ac
intertwined
were
from
dant’s words
acts
not remote
illegal entry”);
tions that
the aliens'
facilitated
acts, including meetings
the criminal
held to
Holecek,
331,
v.
United States
739 F.2d
335
actions,
people
money
encourage
to unlawful
(8th
Cir.1984)(Brandenburg
inapplicable
collected,
given
advice and
instructions
great
when
has done a
more
defendant
deal
(citing
Kelley,
followed
States v.
769
through
than
violations of the
advocate
law
215,
(4th Cir.1985).
F.2d
217
cloak of
"The
speech,
proper).
the instruction was not
thus
critical,
envelops
Amendment
but
the First
laws,
abstract,
existing
discussions of
but lend
System
136. Selective Service
v.
Pub-
Minnesota
speech
protection
urges
the lis
no
which
841,
Group,
lic Interest Research
468 U.S.
law.”));
tener to commit violations of current
3348,
S.Ct.
632
104
82 L.Ed.2d
Mendelsohn,
1183,
United States v.
F.2d
896
(1984) (citing Nixon v. Administrator
Gener-
Cir.1990)
(9th
(computer program was
1186
Services,
2777,
433
U.S.
97 S.Ct.
“too
in and
with the
instrumental
intertwined
(1977);
an
M.M.C.,
through
explicit-
the
implemented
in identifica-
specificity
tional elements —
judicial
tion,
pre-
lack of a
the
example,
inter alia for
punishment,
ly provides
statute.”
innocence,
contained
right
trial —are
the
to have
sumption of
O’Brien,
at 384 n.
88 S.Ct.
U.S.
finding
guilt
determined
the AUEC
to de-
judicial function is ‘not
“The
1673.
by impartial
doubt
beyond
reasonable
it,
can, but to construe
stroy
Act if we
members,
re-
right
appellate
and the
Congress,
the will of
so
with
if consistent
949a;
§§
2006 and 2009 M.C.A.
view.
limita-
constitutional
comport
with
138;
949i(c)(l);
n.
950c. See also infra
”
v.
System
Selective Service
tions.’
II,
M.M.C., Part
R.C.M.
e.g.,
also
see
Research
Public
Interest
Minnesota
506, 701, 703, 806, 906, 912,
841, 850, 104 S.Ct.
468 U.S.
Group,
(listing
X-XII
numer-
Chapters
(1984)
v.
(quoting
CSC
82 L.Ed.2d
trial and
of the accused to a fair
rights
ous
Carriers,
413 U.S.
93 S.Ct.
Letter
rights).
post-trial
substantial
(1973)).
2880, L.Ed.2d 796
Legislatively Inflicts Punishment
2.
Legislatively Determines Guilt
1.
punish-
asserts that his
Appellant also
argues
being pun-
that he is
Appellant
that he
deprivation
rights
ment is
merely
being
for
an AUEC.137We
ished
he
enjoyed.”
Specifically,
“previously
argument misapprehends
His
disagree.
AUEC,
claims that before his status as
of the AUEC deter-
legal significance
enjoyed
to confront
rights
he somehow
Although
mination.
the AUEC determina-
him,
against
petition
for writ
evidence
charged
an element of each
offense
tion is
corpus
protection
habeas
and to
prerequisite, his status
jurisdictional
and a
self-incrimination under
Constitution
alone,
AUEC, standing
punish-
is not
as an
of America. Brief for
of the United States
1182-
supra pp.
under the M.C.A. See
able
asserts that his
Appellant 32. He also
him of his
deprived
status as an AUEC
AUEC,
context,
in this
is used
The term
enjoyed rights under the Gene-
previously
enemy
synonymously
“unprivileged
Id. at 33.
va Conventions.
948a(l), (3);
§§
belligerent.” 2006 M.C.A.
recognized
has
Supreme
The
Court
948a(7).
§
Far from consti-
2009 M.C.A.
analyzing whether a stat-
three tests when
desig-
tuting
guilt,
a determination of
this
punishment: histori-
ute inflicts forbidden
law
nation identifies one’s status under the
cal, functional, and motivational
tests.
including the
of armed conflict
Geneva
Nixon,
472-78,
Finally,
argues
appellant
a
of attain
The M.C.A. is not
bill
status “was devised
the AUEC
der,
lawfully
comprehen
establishes
as it
Congres-
intensely
an
contested
midst of
adjudica
impartial
for the
procedures
sive
anniversary
fifth
and the
sional election
required by the Constitution
guilt
tion of
Attacks,” the M.C.A.
11th
September
of armed conflict.
and the law
constituted
“regularly
a
did not establish
EQUAL PROTECTION
Although
XIII.
Appellant 36.
court.” Brief for
substitut-
alleges that the M.C.A.
appellant
of er
assignment
this
We resolve
judicial determination
legislative
a
for a
ed
for the reasons stat
against appellant
ror
arguments “suggest
guilt, nothing in his
Hamdan,
at
F.Supp.2d
ed
encroaching
intent on
Congress
that
at *44-*50.
Though
Amendment, Ex Post
the First
waived
was administered
punishment
whether
Facto,
Attainder,
Equal
Bill
Protec-
trial, historically,
judicial
without
challenges
appeal
raised in his
tion
legis
concern was whether
inquiry and
Brief
those issues below.
failing to raise
deprivation
created “the
lative enactment
Specifically,
3-5.
Govern-
ordinary
Appellee
and for
forms
any
without
returning
Congress to seek the au-
from
noteworthy
of our
It
that two Branches
is
Hamdan,
necessary.”
thority
found,
he believes
after considerable
Government have
In re-
at
tion
are
nature
explicitly
The 2006 M.C.A. does not
ad-
subject
citing
and thus not
to waiver.
Id.
not
dress waiver or forfeiture of issues
Butts,
130,
Curtis Pub. Co. v.
87
trial,
388 U.S.
at
at
here.
raised
such as
issue
(1967) (First
1975,
905(e)
However,
S.Ct.
termine whether the
and sentence
man,”
that as a “media
Appellant argues
discretion
approved,”
“should be
includes
effectively
to “life with-
he was
sentenced
ary
“to determine the circum-
authority
video, writing
appellant’s argument
entertain
that he will
producing
for
parole
out
indefinitely
regardless
be
detained
of his
providing tech-support.”
speeches
sentence,
conviction and
as it is irrelevant.
Ap-
Appropriateness for
Brief on Sentence
political
This is a matter for the
branches
that the sentence
pellant 3. He contends
beyond
scope
authority
of our
for the
imposed
inappropriately
severe
responsibility
determining
ap-
sentence
which he was convicted and
offenses of
950f(d).
§
propriateness. 2009 M.C.A.
“closely
of other
comparison to sentences
members,
Qaeda
involving
related cases
Applicable
A.
Law
who were sentenced to brief terms of
requires
The 2009 M.C.A.
this Court to
years
personally perpetrating
acts of
make a
of the ap-
de novo determination
asserts that his
violence.” Id. He further
propriateness
imposed.
of the sentence
irrespective
“detention will continue
950f(d).
may
affirm
“[We]
M.C.A.
whether he is sentenced or even convicted
only
part
such
sentence or such
crime,”
and that “this
should
Court
sentence,
cor-
[we find]
amount of the
as
reduce
sentence to a reasonable term
[his]
determinen,
rect in law and fact and
on
years
comparative
that reflects the
seri-
record,
the basis of the entire
should be
ousness of his conduct rather
than the
mandate, unparal-
This
approved.”
Id.
at 1.
offensiveness of his beliefs.” Id.
sector,
leled in the federal
mirrors
civilian
that exercised
service
responds
The Government
that the ad-
Appeals
in review of
Courts
Criminal
just
judged
given ap-
sentence is fair and
Accordingly,
certain courts-martial.143
we
pellant’s character and
nature and ser-
consider decisions of those service courts
crimes,
requests
his
this
iousness of
Appeals
and of the United States Court
sentence,
approved
Court to affirm the
particularly persua-
for the Armed Forces
convening authority. The Govern-
adopt as
precedent
sive
on this issue. We
appellant
ment also asserts that
mischar-
premis-
following
our own the
fundamental
acterizes his sentence to confinement as
by those
applied
es articulated and
courts.
erroneously sug-
parole”
“life without
*109
judged
Each sentence is
“on
deprived
that
the President
gests
the basis of the nature and seriousness of
authority
clemency
parole in
grant
or
the character of the of
the offense and
such a case.
144 may
only
affirm
such sen
fender.” We
appellant’s
find both
charac
We
“(1)
law;
that
correct in
find[ ]
tence
we:
conduct,
terization of his
advanced with a
(2)
(3)
fact;
in
correct
deter
find[]
view,
ar
decidedly
],
record,
content-neutral
and his
on the basis of the entire
mine[
145
approved.”
determining
also decline to should
In
guments unpersuasive. We
be
866(b),
approved
§
be
has no direct
143. See 10 U.S.C.
Uniform Code of
sentence should
(Service
Military
sector....”).
Justice
Courts of Criminal
parallel
the federal civilian
in
Appeals
in each trial
review the record
Judge Advocate
court-martial
referred
Baier,
M.J.
144. United States v.
60
383
General,
including
ap-
cases in which the
(C.A.A.F.2005)
(citation
omitted); United
death,
punitive
proved
includes
a
sentence
Mamaluy, 10 U.S.C.M.A.
27
States v.
year
discharge
one
or confinement
for
(1959);
M.J. Analysis B. engage in sen- required We are not 1. The Offense and the Offender specific between cases: comparison tence convicted, contrary to his Appellant was except in those rare instances which (1) support pleas, providing of: material fairly appropriateness sentence can be including Qae- himself to al and resources only by dispa- reference to determined da, organization terrorist international adjudged closely relat- rate sentences engaged then in hostilities with the United in- [Closely ed cases.... related cases States; conspiring with bin Laden and coactors involved in a common clude] Qaeda other members and associates of crime, parallel in common or [persons] to, alia, in violation inter commit murder scheme, or some other direct nexus be- war, law attack civilians and whose sentences [individuals] tween the terrorism, objects, pro- commit civilian sought compared appel- be .... are terrorism; support for vide material demonstrating lant bears the burden (3) soliciting persons various to commit “closely cited cases are related” these same offenses. to his or her case and that the sentences If “highly disparate.” appellant are charged allege All offenses a nexus to al that burden ... then the Govern- meets February Qaeda during period is a rational ment must show there 2001. The nature and through December *110 disparity. basis for the of these offenses are manifest seriousness objects of charges themselves. The Lacy, v. 50 M.J. United States Ballard, conspiracy both the and solicitation (citing United States v. committing in vi- (C.M.A.1985)); charges include: murder M.J. see also war, Brock, attacking law of civil- v. 13 olation United States 46 M.J. (C.A.A.F.1997). objects, committing ians and civilian ter- Ballard, closely Nothing Lacy related cases.' in 146. United States v. 20 M.J. in Wacha, (C.M.A.1985); also United States v. progeny suggests see limitation on a Court its (C.A.A.F.2001)("Lacy 55 M.J. re- Appeals’ of Criminal discretion to consider quired engage Appeals 'to Courts of Criminal compare and other courts-martial sentences comparison specific in with cases sentence reviewing a case for sen- when that court is .... in those rare instances in which sentence appropriateness and relative uniformi- tence fairly only appropriateness determined can be omitted)). ty.” (emphasis original; in citations disparate adjudged reference to sentences rorism, overwhelming for was also and support material uncontested providing and trial, clearly the members were appellant. At The record reflects that terrorism. overwhelming, by Qaeda uncontested presented hijacked with 19 men recruited al appellant guilty, with evidence that commercial airliners and crashed those air- by appel- provided much of the evidence Pentagon craft into the in Washington voluntary admissions to lant in the form D.C., the World Trade Center in New essentially investigators. Appellant also York, Pennsylvania. and into a field in in his unsworn state- admitted the same in Those attacks resulted the deaths of during presen- ment to the members people. Appellant’s thousands conduct tencing hearing. in directly linked to those attacks personal pledges loyal- he facilitated the voluntary investiga-
In his statements to ty hijackers/pi- to bin Laden two 9/11 tors, appellant multiple admitted on occa- Jarrah, lots, Muhammed Atta and Ziad al with traveling Afghanistan sions to to prepared propaganda and their declara- join Qaeda, undergoing al mili- intent to Also, styled “martyr tions as wills.” he tary-type training Qaeda spon- at an al operated equip- maintained and the media meeting camp, sored with bin Laden comple- ment used to inform bin Laden of following training. During his that meet- attacks, and, tion of those at bin Laden’s ing, appellant discussing admitted bin Lad- personal request, he researched the eco- jihad against en’s views on Islam and States, views, nomic effect of those attacks on the United agreeing with those provided States and that research to bin pledging personal loyalty and then to bin joined Qaeda a Laden. Laden. He then al
member, Qaeda’s of- worked al media also of inten- Appellant was convicted fice, eventually charge took of that tionally providing support material or re- office, performed where he a number of Qaeda, al ter- sources to international recruit, join al acts to to incite others to organization engaged rorist hostilities Qaeda, al prospective indoctrinate States, that al knowing the United Qaeda Qaeda Plan. recruits into the al Qaeda engaged engages in or in ter- had
Appellant readily developing admitted rorism, including August 1998 attacks personal a producing videotape, Kenya Tanzania. on U.S. embassies Laden, request capitalizing of bin on al resulted in hundreds of These attacks also Qaeda’s perfidious attack on the USS deaths, injuries, and exten- thousands of in an effort to recruit and indoctri- COLE con- property damage. sive members prospective Qaeda. nate members into al by legal competent cluded evidence videotape That identified the United beyond appellant, a reasonable doubt suffering States as source of Muslim intent, requisite knowledge demanded, religious world-wide and as a Qaeda, to al provided himself as member duty, migrate Afghani- other Muslims to Qaeda, Afghanistan join al traveled engage jihad against stan and the Unit- Qaeda leadership, underwent met with *111 and others. It was also de- ed States Qaeda spon- military-type training an al most, most, if not the scribed as one camp, pledged and met with and sored important propaganda products produced loyalty to bin Laden. The mem- personal recruit, by Qaeda al to incite and motivate found, beyond also a reasonable bers potential including terrorists suicide bomb- doubt, appellant provided that services ers. Qaeda of bin Laden and al support direct including: preparing propaganda various Qaeda al responsible
Evidence that Qaeda recruiting; for al products intended for the attacks on the United States 9/11 (4) wrongdoer, preservation of societal or- training inciting per- and indoctrination terrorism; (5) der, facilitating wrongdoer to commit of the sons and deterrence loyalty pre- to bin Laden and pledges and those who know of his crimes and his “martyr suspect- wills” for two paring the committing from the same or sentence September hijackers/pilots; ed mili- similar offenses. Tr. 949-50. The researching the economic effect of those tary judge properly instructed commission providing on the United States and attacks presentencing proce- the members on the Laden; operating to bin and the results including appel- dures evidence maintaining processing equip- data 949-51, Tr. lant’s unsworn statement. equip- ment and media communications instructions); (sentencing 961-62 ment for the benefit bin Laden and M.M.C., II, Part R.M.C. Qaeda al leaders. other by appellant’s argu- We are unmoved that was in appellant The record reflects man,” that a ment he was “media who was 30s, family, intelligent, married with a his sentenced to confinement for “life without well-educated, Af- and that he traveled to video, a parole producing writing join Qaeda knowledge al ghanistan with providing tech-support,” speeches and Qaeda engaged that al had in terrorism being “shock-jock” that his a does not engaged and was with the hostilities him deserving parole. make of life without United States. The record also reflects Appropriateness Appel- Sentence Brief for that, knowledge armed and fol- with appellant’s lant 3-4. also decline invi- We lowing military-like training provided al appropriateness tation assess the Qaeda, join appellant fulfilled his desire to perspective, perspec- sentence from his Qaeda personally meeting al after deliberately which displaces tive the incite- discussing Adel and bin Laden and Saif-al propa- ment to violence intended goals. pledged loyal- their beliefs and He ganda produced, he in deference to focus ty to Laden and remained devoted to bin the technical in producing on skills used Qaeda al throughout bin Laden and propaganda. argument grossly This charged timeframe and for more than six significance appellant’s understates the years following capture his detention Qaeda, al appellant’s contributions to up day he was sentenced. Appel- trial, opinion perhaps, own thereof. Both were particular- lant’s words and actions at members, ly inup appellant’s his unsworn statement to the best summed own words unwavering martyrdom reveal his commitment to vio- “I bin oper- asked Laden for lence, including killing ation, the intentional operation, but suicide he refused. protected persons civilians and attacks on why The he refused was that [] reason places. Tr. un- (appellant’s 963-80 recruiting people through gets you media statement); Ex. Appellate (ap- sworn (sic),” than people more suicidal attacks pellant’s Declaration of Renewal of the “I Tr. and that was be the 20th [to Laden). Allegiance Bin to Usama hijacker], but bin laden refused.” Tr. 195. Qaeda al Appellant’s contributions to were judge commission properly in- stratеgic significance recruiting, advised that in determining the members doctrination, retention, inciting others an appropriate they sentence should con- join Qaeda. support He was more society recognizes principle sider that five strategic valuable in media or communica- reasons for the sentence of those who vio- operations. tions than in suicide In the late the law: rehabilitation of the *112 (2) wrongdoer, hijackers/pilots, case of two he direct- punishment wrong- of the 9/11 doer, society ly quest their to kill protection from the facilitated themselves positions personally their en- guarding in fur- they as could many as others in Id. Qaeda’s gaging coalition forces combat.” goals. of al therance considering the en carefully After has failed to sustain his Appellant trial, serious the nature and tire record of Hicks demonstrating burden of offenses, and the matters ness of these his case. “closely case was related” to the sen we find by appellant, presented that he and Appellant did not establish for this offender appropriate to be tence crime,” in a common Hicks were “involved and his offenses. paral “in a common or they or that were scheme,” any other prove nor did he lel Closely-Related Cases 2. nexus between [himself “direct that the sentence Appellant also asserts Addition Lacy, 50 M.J. 288. Hicks].” to comparison severe in inappropriately “fighting in ally, Hicks was involved involving Qaeda al closely-related cases Taliban,” guilty, accepted pleaded members, to brief who were sentenced actions, for his there responsibility some years personally perpetrating for terms of a rational basis for dis by providing that, *113 presented, the facts the basis for XVI. CONCLUSION Under readily is apparent. in sentence disparity a findings approved and sentence are may appropriately be re- While Hamdan affirmed. soldier, provided a foot who ferred to as including physical securi- personal services BRAND, GALLAGHER, SIMS, for bin Laden as ty driver services and PERLAK, ORR, JJ., and concur. in transporting services well as courier SIMS, Judge separate opinion, a filed clearly strategic is appellant weapons, concurring. Qaeda’s “propaganda al and significance to Appellee’s Judge concurring. efforts.” Sentence recruiting SIMS Appellant Brief 4. was Appropriateness at. Although analysis I concur in the Qaeda’s pur- significant to broader more majority, the result reached I write as a sustainment terrorist enter- poses and separately emphasize long-standing both more insidious prise impact and his public position Army of the United States likely significant to have a im- and more of- regarding issue of whether Although than Hamdan. Hamdan no pact case, question appellant’s fenses in as Qaeda’s activities, to al doubt contributed by Congress Military defined Com- limited, more localized and impact his prop- missions Acts of 2006 and were appellant’s technical acumen and he lacked erly recognized existing war crimes. Appellant’s conduct strategic vision. From 1956 onward the States strategic was more and international Army consistently explicitly recog- has scope, inspire and he intended to and moti- following being war nized acts as an untold number of individuals to vate punishable international law: crimes under join provide support to al or otherwise Crime; Conspiracy 1. to Commit a War Qaeda. His behavior and statements at Crime; 2. Direct Incitement of War remorse and reflect his limit- trial show no Attempted of a 3. Commission War potential. rehabilitative ed Crime; and We conclude each aforemen Complicity 4. of a Commission provides “a rational tioned distinction basis War Crime. disparity” for the in the sentences. Id. 27-10, Field Manual The Law Land See Accordingly, we find the sentence correct II,§ fact, Warfare, Ch. Crimes under Inter- on the basis of the law and ¶ (1956 Law, 1956) record, (July FM entire conclude that it should be national 27-10).147 such, manual approved. pre- As this field ¶¶ II, concerned, normally 147. FM Ch. 499-500 armed will be' forces provide: only constituting with those offenses "war 498. Crimes Under International Law. crimes.” Any person, whether a member of the 499. War Crimes. The term "war crime” civilian, armed forces or a who commits an expression the technical for a violation of which inter- act constitutes crime under by any person persons, the law of war responsible national law is therefor and lia- Every military or civilian. violation of punishment. ble to Such offenses in con- law of war is a war crime. comprise: nection with war a. Crimes Incitement, Conspiracy, Attempts, against peace, against humanity, b. Crimes Complicity. Conspiracy, direct incite- c. War crimes. ment, commit, attempts as well as Although recognizes this manual the crimi- of, complicity in the commission crimes responsibility nal of individuals for those against peace, humanity, crimes may comprise any offenses which punishable. war crimes are crimes, foregoing types of members of the *114 al-Qaeda, the birth existence of dates the September the events of appellant, Military Com- enactment of the Acts, by mili- appellant’s trial
missions the manual Although
tary commission. legal binding the force of
does not have persua- serves as it nonetheless
precedent, of the view of United
sive evidence of the law of armed as to the state
States War from the aftermath World
conflict War,
II, pres- the Cold through
ent. ap- person when a such as
Accordingly, any of the afore- chooses to commit
pellant States, against the United
mentioned acts to find surprised not be
he or she should custody of the
themselves in the United military facing by military trial
States long-standing for these viola-
commission of war.
tions of the law INSURANCE
AUTO-OWNERS Plaintiff,
COMPANY,
v. MATERIALS,
AMERICAN BUILDING LLC,
INC., Tampa, KB Home Home, INC., Defendants.
KB No. 8:10-cv-313-T-24-AEP.
Case Court, States District Florida,
M.D. Division.
Tampa
May notes Appellant acts of violence. assuming in even parity sentencing, the three individuals sentenced “closely related.” Even a cur cases were filing, he is the commission at the time of reveals sory comparison of the two cases sentence, a sen- only one to receive a life plead differences that Hicks significant is tantamount tence that he contends only one guilty and was found guilty ed possibility confinement for life without ma specification charge, providing of one parole. terrorism, and the sus support terial were two Appellant argues that there on multi predicated sentence was pended Qaeda al “closely involving related cases cooperation. Military ple conditions of his members, to brief who were sentenced DoD, Office Commission Order Number years personally perpetrating terms of for 2007). (1 May Military Commissions Appropriate- acts of violence.” Sentence respect Appellant’s argument with In the first Appellant ness for 3. Brief resemblance Hamdan bears a closer Hamdan, case, v. Hamdan United States Qaeda who that both were members of months confinement was sentenced to 66 provided loyalty to bin Laden and pledged post-trial five months and served less than directly bin support varying forms of confinement, applying after credit punitive membership Qaeda. and al Neither Laden asserts that Appellant for time served. Qaeda as al nor organization in an such “was convicted on the basis Hamdan Qaeda, standing support of al conduct body guard to bin Laden being an armed alone, “closely shall mandate treatment Qaeda weapons an al courier.” Id. However, appellant as both related.” case, v. United States the second Qaeda of al who Hamdan were members Hicks, asserts that “the mem- appellant sup- in direct performed substantial duties seven-year sentence bers returned to bin Lad- port proximity of and in close suspended which all but nine months en, deciding that we will assume without plea agreement.” Id. pursuant guilty to a “closely related.” Based these cases are that “Hicks conceded Appellant contends we will variance in the sentences upon the that, as an Aus- despite owing allegiance “highly are also assume that the sentences tralian to a coalition allied whether “there disparate” and determine States, around to vari- shopped he himself disparity.” is a rational basis for organizations Afghanistan ous terrorist at 288. ultimately fighter, Lacy, a Taliban 50 M.J. served as