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In the weeks after the March 28 oral argument in Hamdan v. Rumsfeld, conventional wisdom had it that the Supreme Court was likely to rule decisively — in favor of the Bush administration’s military tribunals. The results were different, of course. Justice John Paul Stevens, writing for a four-justice plurality and joined by Justice Anthony Kennedy in concurrence, handed a significant defeat to the president. The divided opinion leaves some fundamental questions to address. Which rights are indispensable in a military tribunal? Can conspiracy ever be a war crime? If so, under which circumstances? The president, Congress, and the courts all will have to grapple with these problems. They may find some guidance in a little-remembered series of court rulings from the U.S.-sponsored Nuremberg trials after World War II. It was not surprising that conventional wisdom predicted a Bush administration victory in Hamdan. The Supreme Court had never before ruled against a president on military tribunals in a time of war. (The famed Ex parte Milligan (1866) rejected President Abraham Lincoln’s policies only after the Civil War was over.) True, in 2004 the Court ruled against the administration in Hamdi v. Rumsfeld and Rasul v. Bush, two enemy-combatant cases. But those cases addressed indefinite detention away from the battlefield, and Anglo-American law has been hostile to indefinite detention since at least the Petition of Right (1628). Hamdan concerned military tribunals for unlawful combatants, an old practice dating back to the American Revolution. Tribunals were reviewed in a series of World War II-era cases — Ex parte Quirin (1942), In re Yamashita (1946), and Johnson v. Eisentrager (1950). The Court consistently supported the president’s power to establish tribunals operating under rules different from both civilian courts and the courts-martial used to try U.S. troops. Moreover, the replacement of Justice Sandra Day O’Connor with Justice Samuel Alito Jr. this term seemed likely to add a vote in favor of the proposed tribunals and to cancel out the recusal of Chief Justice John Roberts Jr., who as a circuit judge had heard the case below. Court watchers seemed confident of their forecast, and conservatives of their imminent victory. A BLOCKBUSTER So the June 29 Hamdan ruling was both a surprise and a blockbuster. Speaking through Stevens, the Court ruled that the president lacked the power to establish military tribunals without congressional authority and that such authority could not be inferred from any of the post-Sept. 11 legislation. But the Court did more than offer a sharp separation-of-powers rebuke to the administration; it also included a bombshell: language suggesting that conspiracy — the sole crime with which Hamdan, allegedly Osama bin Laden’s driver and bodyguard, was charged — might not be a crime under the law of war, though Kennedy’s concurrence declined to go that far.
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To reach even the possibility of this result, the Court had to follow a circuitous path, for it is plain that conspiracy has always been a core part of the American understanding of the law of war. Many of the best-known American and international war crimes cases, from the Civil War (Andersonville and the Lincoln conspirators) to World War II (the Nazi saboteurs, Nuremberg, and Tokyo), included conspiracy counts. The appellant and his amici eschewed the claim that conspiracy was not part of international criminal law, though most European lawyers and human rights activists take that view. Hamdan’s argument was that at the least, conspiracy should be used with caution, as it was at Nuremberg. Equally as surprising as the Court’s conspiracy language was that the Hamdan plurality didn’t merely say the proposed tribunals lacked legislative authority. It ruled that legitimate military tribunals must embody prevailing standards of justice and that today, such standards ordinarily include the protections offered by the Geneva Conventions and those guiding courts-martial for American troops under the Uniform Code of Military Justice. Stevens based this on his reading of American historical practice, and he dismissed the best-known case allowing substandard tribunals, In re Yamashita (1946), as “a glaring exception to this general rule.” Stevens is right to despise Yamashita, but he has his legal history inside out. There have been hundreds, even thousands, of American military tribunals. For war criminals alone (as distinguished from persons under American martial law or occupation government), there were almost 500 tribunals in Europe and almost 500 in the Far East after World War II, charging some 3,000 defendants. Some tribunals were procedurally appalling, like Yamashita’s. Some were superb, like Nuremberg, which afforded defendants more rights and better protections than were afforded civilians in ordinary federal trials of the day. Most war crimes tribunals were somewhere in between, allowing defendants some but not all of the rights guaranteed in court-martial proceedings under the Uniform Code of Military Justice and its predecessor, the Articles of War. Some but not many were as procedurally one-sided as the proposed Guant�namo tribunals. What the thousands of tribunals had in common was that the Supreme Court allowed their results to stand, usually without even reviewing the merits. Willy-nilly, the Court consistently declined to reverse military tribunals, whether good, bad, or ugly. So the Hamdan result is a broad, bold ruling. So bold, in fact, that it is difficult to predict the next step. But as the president, Congress, and the lower courts try to figure out what to do, they will have to face two difficult legal issues that the Court raised but left unanswered. WHICH RIGHTS? First, Stevens was emphatic that military tribunals must not only be properly authorized but also fair, according to “the Rule of Law that prevails in this jurisdiction.” Question: Exactly what does fundamental fairness require? Our courts were divided for decades by this question in reviewing civilian justice. Case by divisive case, the Supreme Court wrestled with the question of which procedural protections were “implicit in the concept of ordered liberty” and thus were incorporated into the due process clause of the 14th Amendment. There’s no reason to think that the fundamental-fairness issue will be any easier with military tribunals. The Stevens plurality proposes that future tribunals follow the “general rule” of tracking the procedures of the Uniform Code of Military Justice wherever practicable — UCMJ Lite — and perhaps this rule will answer most questions. His other starting point is the Geneva Conventions, ratified by the United States in 1955, and in particular Articles 82-108 of the Third Convention, applicable to the rights of captured prisoners of war. The difficulty is that these articles are — like our Fourth, Fifth, Sixth, and Eighth amendments — a mix of specifics and generalities and of indispensable and outdated provisions. The Stevens test, in short, will require significant judicial interpretation. Since the mid-1970s, our courts have tried to get out of the business of expanding the rights of the accused. The Rehnquist Court in particular consistently issued decisions based on narrow readings of the Bill of Rights, especially in the handful of claims arising out of defendants seized, searched, or interrogated abroad. Are these narrow readings the standards that the Stevens formula contemplates? Recall that around the same time as our due process revolution ran out of steam in the 1970s (but for quite different reasons) European municipal and regional courts began to articulate their own notions of trial rights and human rights, just as the Warren Court had done a generation earlier. Are these foreign notions also grist for the Stevens test? What about rulings from the international criminal courts in the Hague; Arusha, Tanzania (to address the genocide in Rwanda); and elsewhere? Their rulings enjoy wide legitimacy throughout the world, even though they still leave much to be desired in terms of procedural protections for defendants. There is no single test of a military tribunal’s fairness, and referring to Geneva, Nuremberg, or the Hague will not automatically provide answers. IS CONSPIRACY A WAR CRIME? The second unanswered question of Hamdan is whether conspiracy is a crime chargeable in a military tribunal. It may seem a small point. After all, there are many substantive crimes under the law of war, and the typical war criminal will have committed at least one. Almost all Nuremberg defendants acquitted of conspiracy were convicted of substantive offenses. But this overlooks the procedural and substantive benefits that flow to the government in any conspiracy case. These familiar advantages — evidentiary, jurisdictional, statute of limitations, and sentencing — led Judge Learned Hand to call conspiracy “the darling of the modern prosecutor’s nursery” and explained its attraction to the Zacarias Moussaoui prosecutors. Can it be that four justices are willing to dispense with conspiracy in military tribunals, and by doing so bar the government from advantages it routinely enjoys in other courts? Stevens parsed and distinguished the various authorities in this area, often for their omissions. Justice Clarence Thomas in dissent tried to rehabilitate the historical basis for conspiracy as a war crime. But neither justice considered the sole precedent for the question of whether conspiracy to commit war crimes — the charge against Hamdan — is part of the law of war. The setting was Nuremberg, July 1947, where five panels of three American judges each had already begun to hear cases against senior Nazi doctors, judges, SS officers, and industrialists. In most of these cases, defendants were charged with conspiracy to commit war crimes and crimes against humanity, and all defendants sought dismissal of the conspiracy charge. And so the judges — all 15, plus one alternate — sat en banc on a hot day in the main Nuremberg courtroom to hear oral argument. The exchanges were lucid, the judges engaged, and the questions prescient. A full transcript is easily found. What’s lacking are full-fledged judicial opinions. Although they deliberated together, the five panels issued separate summary orders. But their rulings were consistent. All five panels ruled that (1) “conspiracy to commit war crimes” may very well be part of the law of war, but (2) it was not enumerated in the Nuremberg charters with sufficient precision to be a crime within the jurisdiction of the Nuremberg tribunals. That doesn’t mean that the tribunals rejected all conspiracy liability, for they did not. They held that conspiracy to plan, initiate, or wage aggressive war (which could include war crimes among its predicate acts) was within the Nuremberg jurisdiction, and they continued to accept indictments that included that form of conspiracy liability. Importantly, wherever conspiracy was part of the charge, it was used with restraint. At Nuremberg and other U.S. military tribunals, conspiracy was used exclusively against big fish who were early planners but not later participants or whose specific deeds were unclear — never against small fish whose deeds were trivial, personal, or ministerial. Generals who led army corps and long-serving senior SS officers whose whereabouts could not be documented for particular killing campaigns were the sort of persons charged. Conspiracy was never used against minor players, even those who performed crucial roles. Adolf Hitler’s chauffeurs, pilots, secretaries, valets, cooks, and bodyguards were all captured — and released. The lesson of Nuremberg is clear: Yes, conspiracy is a war crime, and Kennedy’s reluctance to toss out the baby with the bath water is spot-on accurate in its legal history. But no, conspiracy is not a crime to be read into every military commission. And it emphatically is not a charge that a shrewd prosecutor wastes on apparent small fry such as the driver Salim Hamdan.


Jonathan A. Bush teaches the law of war at Columbia University and is writing a biography of Telford Taylor, chief prosecutor at the later Nuremberg trials. He co-authored an amicus brief in Hamdan , but the views expressed here are exclusively his own.

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