The D.C. Circuit is currently debating whether to expand the jurisdiction of military commissions in al Bahlul v. United States. After summarizing the genesis of this issue, this post reviews the arguments for expanding and concludes: first, Congress has the constitutional authority to define and punish war crimes that are not violations of international law; and second, the jury-trial exception to Article III of the Constitution is still applicable for non-international war crimes.
In Hamdan II, the D.C. Circuit decided that military commissions could not retroactively prosecute defendants for new crimes established by the Military Commissions Act of 2006 (“MCA,” amended in 2009). MCA authorized military commissions to have jurisdiction over some non-internationally recognized war crimes, such as providing material support for terrorism. The court held that for offenses committed before the 2006 statute, military commissions only had jurisdiction over war crimes firmly recognized by international law.
Regarding prospective prosecution of non-international war crimes, however, Judge Kavanagh declared:
“Although material support for terrorism is not yet an international-law war crime, Congress’s war powers under Article I are not defined or constrained by international law. The Declare War Clause and the other Article I war powers clauses do not refer to international law . . . Moreover, Congress has long prohibited war crimes beyond those specified by international law . . . The U.S. Constitution does not give the international community . . . a judicially enforceable veto over Congress’s exercise of its war powers.” Hamdan II, at n.6.
Subsequently, Kavanagh’s opinion has sparked a debate over the expansion of military commission jurisdiction, and whether there is a legal basis for prosecuting enemy belligerents who violate non-international war crimes. In September, the D.C. Circuit sitting en banc heard the oral arguments for al Bahlul v. United States. The government argued that military commissions have jurisdiction over violations of U.S. domestic laws of war and not solely over violations of international laws of war. In response, the National Institute of Military Justice filed an amicus brief, co-written by American University’s Stephen Vladeck, arguing that jurisdiction should not be expanded.
There are two separate constitutional authorities that allow Congress to establish and use military courts. First, Congress has the authority to write statutes defining offenses under Article I § 8 of the Constitution. Second, Congress has the power to create non-Article III courts to try defendants. Specifically, the Supreme Court established a framework for military commission jurisdiction in Ex parte Quirin. The Court held that Congress acted under Article I’s Define and Punish Clause to establish the commissions by statute. Moreover, Congress had the power to create non-Article III military commissions because there was an inherent exception to the Constitution’s jury-trial provisions for enemy belligerents who violate the laws of war.
While Judge Kavanagh’s footnote in Hamdan II suggests that Congress can authorize military commissions to try non-international war crimes, his opinion is insufficient. Whether or not Congress can create domestic laws of war is only half of the issue. The other half is whether there is a jury-trial exception, like the one in Quirin, which allows the government to try a defendant in non-Article III military commissions.
One argument is that Congress has extensive interpretive latitude under the Define and Punish Clause to define by statute non-international war crimes and try them using military commissions. In contrast to the explicit language of Judge Kavanagh’s footnote, Michael Paulsen reasons that Congress can interpret international law at their own discretion. He believes that even if material support for terrorism is not an internationally recognized war crime, Congress has the constitutional power to say it is by statute. This view is advantageous because it stays within Quirin’s framework and does not cause many Article III problems.
A second argument is that Congress can create violations of the laws of war using an Article I power other than the Define and Punish Clause. Judge Kavanagh believes Congress can use its War Powers to establish laws concerning war violations. While the Define and Punish Clause is limited by reference to the laws of nations, the War Powers are not as constrained.
Additionally, military commissions are already authorized to try non-international laws of war. Espionage and aiding the enemy are offenses only recognized by domestic laws, and military commissions have tried them since the Revolutionary War. This is part of the government’s argument al Bahlul. They believe domestic laws of war were implicitly included in Quirin’s jury-trial exception because the defendants in Quirin were charged with espionage and sabotage.
Consequently, Congress has the constitutional authority to define and punish war crimes that are not violations of international law, and the Quirin jury-trial exception to Article III is still applicable for non-international war crimes.