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

Fordham International Law Journal, May 2017

Margulies, Peter

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

FORDHAMINTERNATIONAL LAWJOURNAL Fordham International Law Journal Peter Margulies - 2013 Article 1 Columbia Law School. Copyright c 2013 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj DEFINING, PUNISHING, AND MEMBERSHIP IN THE COMMUNITY OF NATIONS: MATERIAL SUPPORT AND CONSPIRACY CHARGES IN MILITARY COMMISSIONS PeterMargulies' * Professor of Law, Roger Williams University; B.A., Colgate University; J.D., Columbia Law School. I thank reference librarian Emilie Benoit for her expert research assistance and Geoff Corn, Ashley Deeks, David Frakt, Karen Greenberg, Andrew Kent, Bill Kuebler, Mike Newton, Jens Ohlin, Michel Paradis, and participants at a workshop sponsored by the International Law Department of the US Naval War College for comments on previous drafts. FORDHAM INTERNATIONAL LA WJOURNAL INTRODUCTION Impulse has clashed with reflection throughout the American history of military commissions. The Framers had a clear favorite in this fight. Deploring the frequency of treaty violations and assaults on foreign ambassadors in the Articles of Confederation period,' they gave Congress authority to "define and punish . . . Offenses against the Law of Nations"2 to inspire deliberation that the Articles of Confederation period had lacked. However, impulse has frequently threatened to supplant reflection in this exigent realm. 1. Madison cautioned that the Articles encouraged "any indiscreet member to embroil the Confederacy with foreign nations." See THE FEDERALIST No. 42, 262 (James Madison) (Clinton Rossiter ed., 1961). 2. U.S. CONST. art. 1,§ 8, cl. 10. In the aftermath of September 11, President Bush established commissions unilaterally, only to be rebuffed by the Supreme Court.s While the Obama administration helped remedy the procedural infirmities that drove the Supreme Court's decision, the government has returned to impulse's well in two cases, one pending before the District of Columbia Circuit and the other just decided, arguing that international law does not limit military commission jurisdiction over charges of "material support" to terrorism.4 According to the government, Congress's war powers5 underwrote the development of a United States "common law of war" which renders the Define and Punish Clause superfluous.6 Critics of the government's view argue, in contrast, that the Define and Punish Clause precludes the use of military commissions to try any charges of material support. This Article argues that both the government and its critics have misread the Framers' intent, American practice, and the limits of international law. The problem in the two D.C. Circuit cases, United States v. Hamdan and United States v. al Bahlul, arises because of the exceptional breadth of the domestic material support statute, which bars material support of both terrorist activity and terrorist groups.7 For reasons that make sense in the domestic context, the statute bars providing money, services, training, and expert advice or assistance.8 Providing any amount of money, no matter how small, to a group such as Hamas designated by the Secretary of State as a "foreign terrorist organization" violates the domestic statute. Congress largely imported this broad prohibition in the Military Commission Acts (MCAs) of 2006 and 2009. While the MCA prohibition is limited to Al Qaeda and associated forces, it clearly reaches acts such as low-level financial support that have never been considered violations of international law.9 Applying the statute to acts committed before its enactment would trigger a clash with the principle of legality, inscribed in the Constitution's Ex Post Facto Clause, which requires that a prospective defendant receive fair notice that his contemplated conduct is criminal.10 That clash with the principle of legality dominates appeals of the material support convictions of Salim Hamdan (Osama bin Laden's former driver) and Al Qaeda propagandist Ali Hamza al Bahlul. The scope of military commission jurisdiction over charges such as material support entails questions far broader than the two cases now on appeal. These questions involve the role of international law in the structure of the Constitution and the United States' options in meeting the continuing threat of terrorism. Unfortunately, the principal schools of thought on military commission jurisdiction have not made arguments that do justice to the stakes involved. The government's argument that a US common law of war allows it to bypass the Define and Punish Clause would have troubled the Framers. The Framers had carefully studied the early scholars (publicists) of international law such as Vattel, Grotius, and Pufendorf. They admired the development of international law, which had helped set the stage for the constraints favored by the Framers on arbitrary government authority. Vattel asserted that international law is important precisely because individual nations display defects in judgment when left to their own devices." Hamilton, arguing in a New York court that a state law violated the law of nations, had viewed compliance with that law as a matter of "national character."' 2 Edmund Randolph, the first Attorney General, advised that "every change [in the law of nations] is at the peril 9. 10 U.S.C. §§ 948a( 7 ), 950t(25) (2009). 10. See DAVID LUBAN,JULIE R. O'SULLIVAN, & DAVID P. STEWART, INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAw 14-15 (2010). 11. EMMERICH DE VATTEL, THE LAW OF NATIONS 137 (London 1797). 12. See Rutgers v. Waddington, Opinion of the New York Mayor's Court, Aug. 27, 1784. There is no official report of the case. Documents from the case are collected in 1 THE LAW PRACTICE OF HAMILTON: DOcUMENTS AND COMMENTARY 284-543 (Julius Goebel ed., 1964). The opinion of the court is reprinted in id. at 393-419 [hereinafter LAW PRACTICE]. of the nation which makes it."1s From the Framers' perspective, a "US common law of war" would have made as much sense as a "US law of physics." Moreover, the overwhelming weight of US practice has tracked the Framers' concerns. US practice informs the development of international law without creating a distinctive body of law that supplants the law of nations. In the Civil War and World War II, the US tailored prosecutions to conduct such as sabotage, espionage, and the killing of civilians which has traditionally been tried in military commissions. To conform to our allies' reading of international law, American prosecutors at Nuremberg narrowed the amorphous category of "membership offenses" to participation in units that specialized in killing civilians and the knowing provision of substantial financial support to such groups. The exception to this trend is Andrew Jackson's First Seminole War military commission trial for an elderly Scottish trader, Alexander Arbuthnot, a vocal but almost certainly nonviolent defender of Native American rights.14 Historians have cast Jackson's resort to a military commission as an outlier, not an example to be followed.' 5 If the US common law of war approach fails to persuade, so does the opposing argument, which I call the categorical approach. Backers of this theory, including the D.C. Circuit panel in Hamdan v. United States, have asserted that unless international bodies have endorsed prosecution of the precise offense charged in military commissions, the law of nations provides inadequate authorization under the Define and Punish Clause.' 6 The categorical approach fails to ask whether the test of jurisdiction should be functional, relying on the conduct at issue rather than the label that the charge represents. Just as the US common law of war view narrows US practice to fit its argument, the categorical approach narrows international practice. Aiding and abetting liability, for example, is analogous to a subset of material support charges that entails concrete assistance to unlawful violence or knowing performance of a substantial role in violent organizations. The Framers did not share the categorical approach's embrace of arbitrary labels. Madison in Federalist No. 37 distinguished law's "course of practice" from science's "perfectly accurate . . . delineations." 7 The difficulty of codification also argued for a measure of deference to Congress. In an important early case on the Define and Punish Clause, Justice Story observed that international law's resistance to facile formulas led the Framers to entrust Congress with the "power to define" the law of nations.'8 The certainty of the categorical approach would have earned a skeptical rejoinder from the pragmatic Framers. The categorical approach also ignores the profound concern that the publicists and Framers had with violent nonstate actors who defied state authority. Vattel warned against the dangers of individuals and groups that embroiled states in war, while Jay attributed wars with Native American nations to the excesses of border state officials and residents.' 9 Courts have typically upheld legislation under the Define and Punish Clause that targets individuals such as pirates and counterfeiters who threaten America's standing in the world. 20 Terrorists constructing a haven in one nation as they launch attacks on another surely fit into the same category of individuals who threaten international cooperation. To understand why both sides fall short, I advance a membership theory of the Define and Punish Clause that relies on Enlightenment ideas about the psychology of law. I argue that the Framers drafted the Define and Punish Clause to enhance the deliberation achieved by membership in the 17. THE FEDERALIST No. 37, supranote 1, at 224 (James Madison). 18. United States v. Smith, 18 U.S. 153, 159 (1820). 19. THE FEDERALIST No. 3, supra note 1, at 44 (John Jay) (attributing the existence of several such conflicts to improper behavior of border states and their residents). 20. See generally United States v.Arona, 120 U.S. 479 (1887). community of nations. Publicists like Vattel claimed that accepting international norms would temper the short-term impulses toward vanity and revenge that had convulsed Europe. Membership would discipline those impulses, allowing a longerterm perspective to emerge. The Framers sought to promote this turn toward reflection through enactment of the Define and Punish Clause. The Clause also contained in miniature the separation of powers framework that the Framers had constructed to promote deliberation. Checks and balances would neutralize the "momentary inclinations" that had cast the Articles of Confederation period into near anarchy.2 ' Under the Clause, Congress, not the President, defined the law of nations. Congressional involvement paved the way for public debate between the political branches. The necessity for such debate freed decisions from the monolithic turn of mind that can afflict the executive branch.22 Hamilton, who had argued in Rutgers v. Waddington that a New York court had to interpret state law in light of international law, also saw a role for courts in curbing the sometimes capricious "humors" of the political branches and squaring legislation under the Clause with the contours of the law of nations.23 However, the Framers and subsequent courts recognized that to define the law of nations, Congress required a zone of deference. International law, like other "institutions of man," did not submit readily to the "efforts of human sagacity."24 Madison, recalling his experience in drafting the Constitution, also noted with some ruefulness that the codification of any body of law involved the "unavoidable inaccuracy" of words.25 Defining international law therefore required the exercise of judgment, not merely the diligence of a scribe. Without a measure of deference, legislative fear of second-guessing would hobble Congress's power under the Define and Punish Clause,26 leaving it to the fate Madison depicted for most previous democratic experiments: "short in their lives . [and] violent in their deaths." 27 The case for deference was even stronger because the community of nations that the new Republic sought to join was hardly a utopia: the Framers knew that European states had often honored international law mainly in the breach.28 In their more selfish moments, European powers might view America not as a member of a community entitled to respect but as "prey" ripe for the taking.29 Indeed, the Framers included a number of provisions of the Constitution, such as the Foreign Gifts Clause and the requirements for election of members of the House of Representatives, precisely to minimize the dangers of foreign influence. A decision such as Arjona exhibited this measure of deference, viewing the counterfeiting of foreign currencies within the United States as undermining global trade and therefore a violation of the law of nations, despite the lack of an express prohibition of counterfeiting in treaties or customary international law. Counterfeiters, like pirates, were governed by short-term impulses like greed that threatened to disrupt global cooperation. The Define and Punish Clause aimed to control the harm arising from such impulses, in order to preserve space for long-term perspectives. The deference the Framers expected is hardly foreign to international law today, which would also accord a measure of deference to individual states' assessments of their obligations. The principle of complementarity in international law requires that international tribunals accord deference to state investigations of crimes against humanity.3 This approach builds state capacities for enforcing legal norms. Post-September 11 Security Council resolutions that stress international cooperation in counterterrorist efforts fortify the argument for granting states a quantum of discretion." Based on this domestic and international authority, US courts should extend a measure of deference to current attempts by Congress to address the threat posed by terrorist groups such as Al Qaeda. However, as the plurality opinion by Justice Stevens hinted when the Supreme Court struck down President Bush's unilateral establishment of military commissions, that deference cannot be absolute.3 Some judicial scrutiny is necessary to preserve the deliberative benefits of the law of nations that the Framers contemplated in the Define and Punish Clause. To realize the membership conception in military commission trials, courts should defer to Congress's establishment of either a formal or a functional nexus between the charges it wishes military commissions to adjudicate and conduct charged in past military commission proceedings. As the champions of the categorical approach would acknowledge, a charge such as aiding and abetting the killing of civilians may be tried in a commission, because international tribunals have tried such charges in the past. Going beyond such formal links, a functional nexus entails an analogy between the underlying conduct at issue in past proceedings and the conduct alleged in current trials. Courts can narrowly interpret broad charges of material support, permitting military commission jurisdiction only over acts that parallel aiding and abetting liability. Typically, charges should entail a significant link to violence or knowing performance of a substantial role in Al Qaeda. In the cases before the D.C. Circuit, Hamdan's role as bin Laden's driver would not meet this jurisdictional predicate, although al Bahlul's conduct as bin Laden's personal propagandist would. This Article breaks new ground both normatively and descriptively. It relies on the Enlightenment's psychology of law as an interpretive lens for both the enactment of the Define and Punish Clause and subsequent US practice. Other scholars have noted the Framers' distrust of short-term impulse and their quest for a structure that would encourage longer-term perspectives. Previous work, however, has not fully analyzed the Define and Punish Clause's incorporation of the Framers' structural innovations such as separation of powers.34 In addition, other scholars have not situated a zone of deference for Congress's exercise of power under the Clause within the Framers' fear of foreign factions. The approach taken in the Article also presents advantages over both the US common law of war and categorical approaches. Unlike the US common law of war approach, the membership approach is consistent with the Framers' commitment to the law of nations. Because the Article rejects the categorical approach's rigid preclusion of material support charges in military commissions and instead recommends a functional test for tailoring such charges, it dovetails with the pragmatic strand found both in the Framers' thought and international law doctrines such as complementarity. The Article is in five parts. Part I explores the Enlightenment psychology of law, arguing that it comprises a membership view of a global community. Part II explores the influence of this approach on the Framers. It demonstrates that the publicists' distrust of short-term impulses played a major role in the Constitution's treatment of the law of nations. Part III offers an account of the membership approach that encompasses American practice from the Founding Era to the present, including the Civil War, World War II, and the Nuremberg tribunals. With the exception of Andrew Jackson's commission for Arbuthnot, American practice has consistently followed the membership conception. With that backdrop in place, Part IV discusses the special problems caused by the MCAs' inclusion of material support charges as offenses triable 34. See Daniel M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of InternationalRecognition, 85 N.Y.U. L. REV. 932, 939-40 (2010); see also id. at 1000 (describing the Define and Punish Clause as a "minor provision"). by military commission. Part IV also describes the US common law of war and categorical approaches to this problem, and the drawbacks of each. It devotes particular attention to the D.C. Circuit's application of the categorical test in Hamdan II. Part V applies the membership approach to the problem of material support. It argues that a tailored approach to conduct constituting material support fits US precedent and practice and harmonizes with international law. Part V also addresses charging conspiracy in military commissions, concluding that charging conspiracy as a mode of liability, like aiding and abetting, is appropriate for war crimes such as killing civilians. However, the law of nations does not support charging conspiracy as a separate offense that rests on mere agreement to commit a crime. I. THE MEMBERSHIP CONCEPTIONAND THE ENLIGHTENMENT'S PSYCHOLOGY OFLAW The Enlightenment thinkers who influenced the Framers saw membership in a community of nations as an aid for salutary deliberation that would constrain government. They argued that domestic and international law corrected for pervasive flaws in individual psychology. As Pufendorf noted, "not all of the faculties of man act continually or in a uniform manner; [s]ome . . . are excited, and then controlled and directed, by an impulse from within.".5 European thinkers claimed that monarchs thirsting for glory and revenge had turned the continent into a landscape of permanent war and goldencrusted palaces that yielded grim lives for ordinary people.36 35. 2 SAMUEL VON PUFENDORF, DE OFFICIO HOMINIS ET Civis JUXTA LEGEM NATURALEM LIBRI Duo 3 (James B. Scott ed., Frank G. Moore trans., 1927) (1682) (describing insight that dovetails with recent work in cognitive psychology that suggests that people make decisions based on inadequate information). See DANIEL KAHNEMAN, THINKING, FAST AND SLOW 245-48 ( 2011 ); see also Daniel Read, IntertemporalChoice, in BLACKWELL HANDBOOK OF JUDGMENT AND DECISION MAKING 424, 428-29 (Derek J. Koehler & Nigel Harvey eds., 2004) (noting that individuals prefer "smaller-sooner reward"). See Peter Margulies, judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law, 96 IOWA L. REv. 195, 205-11 (2010) and Oren Gross, Chaos and Rules: Should Responses to Violent Crisis Always Be Constitutional, 112 YALE L.J. 1011 (2003), for a discussion of the role of cognitive biases in national security policymaking andjudicial review. 36. See ALBERT 0. HIRSCHMAN, THE PASSIONS AND THE INTERESTS: POLITICAL ARGUMENTS FOR CAPITALISM BEFORE ITS TRIUMPH 9-12 (1977); cf PIERRE FORCE, SELFTo counter these impulses, the philosophers championed the development of institutions and authorities with three elusive attributes. Sound institutions and authorities had to bind officials and private individuals, adapt to changing times, and maintain continuity with abiding values.37 Without such institutions and authorities, Pufendorf cautioned that ruinous impulses often overwhelm both state officials and private individuals.38 Governed by impulse, private individuals and nations fail to act consistently, undermining cooperation and making long-term investments of time and effort impossible.39 By providing standards for members of the international community, thinkers like Pufendorf and Vattel set a longer time horizon. 0 For the Enlightenment thinkers, the ascendancy of international law sprang from the interdependence of nations in growing global commerce. Rulers who wished to finance wars and palaces with public debt would be chastened by the negative reactions of international markets.4' Fear of a prompt market response would temper the "sudden arbitrary actions of the sovereign" which Montesquieu and others feared. 42 An INTEREST BEFORE ADAM SMITH: A GENEALOGY OF ECONOMIC SCIENCE 165-67 (2003) (analyzing Adam Smith's view of envy as a disabling impulse); STEPHEN HOLMES, PASSIONS AND CONSTRAINT: ON THE THEORY OF LIBERAL DEMOCRACY 55 (1995) (discussing Smith's listing of passions that overwhelmed judgment, including "envy, malice, the longing for revenge, parochial loyalty ... [and] zealotry"). 37. See HIRSCHMAN, supranote 36, at 10-13. 38. See PUFENDORF, supranote 35, at 92; see also HIRSCHMAN, supra note 36, at 5354 (citing David Hume). 39. PUFENDORF, supranote 35, at 92 (noting that each person, without the benefit of law, would tend to be an "inconstant friend"); cf HIRSCHMAN, supra note 36, at 5354 (discussing Pufendorf's influence on Locke). 40. See PUFENDORF, supra note 35, at 91-92 (observing that law curbs impulses because it provides the wisdom of a "common judge" as a shared metric for the resolution ofdisputes). 41. See CHARLES DE SECONDAT MONTESQUIEU, THE SPIRIT OF THE LAWS 389 1 20 (Anne M. Cohler et al. eds. & trans., 1989) (1748) ("[I]n this way commerce was able to avoid violence and maintain itself everywhere."); HIRSCHMAN, supra note 36, at 7374 (citing Montesquieu); FORCE, supra note 36, at 151 (noting that Montesquieu credited Jewish merchants as inventing bills of exchange that tempered monarchical power because their intangibility permitted ready trade across borders); cf Francesca Trivellato, Credit, Honor, and the Early Modern FrenchLegend oftheJewish Invention ofBills of Exchange, 84 J. MOD. HIST. 289, 323 ( 2012 ) (arguing that ascription of the development of bill of exchange to Jews is largely apocryphal, while noting Montesquieu's use of story as example of commerce's check on arbitrary governance). 42. HIRSCHMAN, supranote 36, at 74. appreciation of the "network of mutual obligations" that international commerce created would defuse the impulses that prompted armed conflict.43 When war nonetheless broke out, nations' reliance on global commerce also raised their stake in rules that assuaged the inevitable resentments engendered by conflict. As Vattel argued, the uncertainty and chaos endemic to war make it "difficult always to form a precise judgment of what the present case requires."44 Giving way to short-term impulses in the conduct of war could unleash unnecessary force that would spur further violence and complicate the restoration of peace and commerce. 45 To curb the impulse to wield gratuitous force, Vattel urged, it was "absolutely necessary that nations should reciprocally conform to general rules."46 In refining these rules, Vattel described a trend in state practice toward heeding "the voice of humanity" regarding the treatment of captives.47 The impulse toward expediency, Vattel admitted, could mute this voice, particularly when fighting an enemy that was "savage, perfidious, and formidable."4 As David Hume also acknowledged, the desire for revenge could obscure humanity's urgings.49 However, international law increasingly recognized that "[o]n an enemy's submitting and laying down of arms, we cannot with justice take away his life."" The state could benefit from being seen as deliberate and just. Membership in the community of nations required emulation of the "generous" leader whose actions were guided by a longerterm perspective.51 For Vattel, a state's membership also implied responsibility for harm that impulsive citizens could inflict on the international order. Because individuals driven by short-term impulses could ignite unnecessary conflicts, Vattel declared that the power to make war "solely belongs to the sovereign power," who is best situated to judge "circumstances of the utmost importance to the . . . state."52 Allowing individuals acting on their own to engage in armed conflict against foreign states would be "dangerous," since any individual under the sway of ideology or avarice could "involve [the state] in war."53 War could occur because a state victimized by the incursions of individuals from another state has rights by virtue of its own membership in the international community.54 The victim state need not be a hostage to the short-term impulses of another state's nationals; instead, it may "enter [the defaulting] country in pursuit" of its enemies.55 A victim state that captures 52. Id. 223; cf Kenneth Watkin, Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy, PROGRAM ON HUMANITARIAN POLICY & CONFLICT RESOLUTION, HARVARD UNIV. OCCASIONAL PAPER SERIES, Winter 2005, available at http://www.hpcrresearch.org/sites/default/files/publications/ OccasionalPaper2.pdf (discussing traditional elements of law of war, including requirement that individuals engaged in hostilities had to have "right authority" which is defined as state sanction). 53. VATTEL, supra note 11, 14. 54. See id. 55. Id. 1 133. Following Vattel, US policymakers have located this prerogative in a victim state's right of self-defense. See Harold Hongju Koh, Legal Advisor, U.S. Dep't of State, Speech at the Annual Meeting of the American Society of International Law. The Obama Administration and International Law (Mar. 25, 2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm (stating US policy when another state is unable or unwilling to control nonstate actors who threaten the US or US personnel). The law of neutrality has also recently furnished a useful analogy for a state's prerogatives in non-international armed conflicts with groups such as Al Qaeda. See Ashley S. Deeks, "Unwilling or Unable": Toward a Normative Framework for ExtraterritoriaSlelf-Defense, 52 VA.J. INT'L L. 483, 499-503 ( 2012 ); see alsoKarl S. Chang, Enemy Status and Militaty Detention in the War Against Al-Qaeda,47 TEX. INT'L LJ. 1, 2536 ( 2011 ) (looking to neutrality law to define "enemy" who can be targeted or detained); cf.Jennifer C. Daskal, The Geographyofthe Battlefield: A Frameworkfor Detention and Targeting Outside the "Hot" Conflict Zone, 161 U. PA. L. REV. (forthcoming 2012), availableat http://ssrn.com/abstract=2049532 (suggesting additional guidelines for use of force). But see Rebecca Ingber, UntanglingBelligerency from Neutrality in the Conflict with Al Qaeda,47 TEX. INT'L L.J. 75 ( 2011 ) (arguing that neutrality law has little to say about detention ofsuspected terrorists based in another state). individuals who have violated the laws of war may impose appropriate punishment.56 Policing the short-term impulses that drive violations of the law of war required not merely legal norms, but also institutions to enforce them. Institutional architecture had to ensure against the resurgence of the absolute monarchs who had wasted Europe's blood and treasure. To avoid replicating the risks of individuals' short-term thinking, institutions needed a careful blend of independence and overlap. In the 17th century, Pufendorf sought to promote this longer-term perspective with a larger role for courts. To further this project, he developed a series of maxims, such as interpreting norms to maximize "common advantage" or "peace" between persons and states and tailoring them to avoid absurd results.57 Montesquieu expanded on this insight, developing a theory of checks and balances in which the agenda of each branch curbed the others.58 One can read Vattel as less committed to institutions; indeed, American officials who resisted the membership conception's reliance on institutions like judicial review cited Vattel's assertion that a state may summarily execute "banditti" who kill and plunder indiscriminately.59 However, this is an unduly superficial reading. Vattel conditioned application of the death penalty on a finding that the captive was "guilty" of exceptionally serious violations of the laws of war.co Such a determination requires a fair and accurate process. 61 Hasty or 56. See VATTEL, supra note 11, 141 (stating punishment is appropriate for a "breach of the law of nations, and particularly when [the offending individual] has violated the laws of war"). 57. See PUFENDORF, supranote 35, at 85. 58. See HIRSCHMAN, supra note 36, at 7778 (quoting MONTESQUIEU, COMPLETE WORKS 112 (1949)) ("So that there may be no abuse of power, it is necessary that, through [institutional design] . .. power be stopped by power."). 59. VATTEL, supra note 11, 1 226 (asserting that if individuals act on their own after nation declares war, the "enemy shows them no mercy, but hangs them up as he would so many robbers or banditti"); see also Letter fromJ.Q. Adams, Sec'y of State, to George W. Erving, Minister Plenipotentiary to Spain (Nov. 18, 1818), reprinted in 4 AMERICAN STATE PAPERS: FOREIGN RELATIONS 539-41(1834) [hereinafter Adams Letter] (citing Vattel in endorsingJackson's use of military commissions in 1818 during the Second Seminole War). 60. VATTEL, supranote 11, 141. 61. See generally id. 11 136-59 (discussing standards and recommendations for putting prisoners to death). biased decisions would merely replicate the short-term impulses that the philosophers sought to curb. In curbing harm triggered by the short-term impulses of officials, citizens, and foreign nationals, the publicists believed that states under the membership conception needed some discretion. As Pufendorf recognized, a legal system that sought to preclude all flexibility would soon become mechanical in application, since the future's "infinite variety" demands exceptions to general rules.62 A member of a community should not be set up to fail. By virtue of its membership, a state had some leeway to "judge what her own particular situation authorizes." 68 This leeway was not unlimited; certain principles, such as diplomatic immunity, were absolute.64 Nevertheless, for international law to form a workable system, states needed a zone of deference. 65 Exercising judgment within this zone, states could refine approaches that were broadly consistent with established norms and also fostered global compliance. II. THE FRAMERS ON MEMBERSHIP The Framers refined and deepened the psychological perspective pioneered by the European philosophers. Like the publicists, they believed that short-term impulses such as vengeance threatened to commandeer official and individual decisions.66 The deleterious influence of short-term impulses in the individual states was central to the case for a strong federal government.67 In holding recently that much of Arizona's immigration law was preempted by federal legislation, the Supreme Court cited Jay's observation that individual states acting "under the impulse of sudden irritation" could defy international law and disrupt foreign relations.68 Haunted by worries that a failure to comply would doom the new Republic to foreign domination, the Framers devised institutions such as the separation of powers that would promote compliance and allow for progress in the humanity of international norms. The Define and Punish Clause contributed to that goal, cementing America's place in the global system and deterring individuals at home and abroad whose short-sighted actions could undermine America's global standing. However, the Framers were not naive. They also recognized that harmful foreign influence could distort both domestic and foreign policy.69 The Define and Punish Clause encouraged Congress to refine the disparate strands of the law of nations into a guide with greater "certainty and uniformity."70 Secure in the knowledge that the separation of powers would guide the Clause's implementation, the Framers' views implied that a measure of deference to Congress's handiwork was appropriate. A. Impulses, Institutions,and the Constitution'sTreatment of the Law ofNations Hamilton, a lawyer by trade well-acquainted with the European philosophers, was most acute in elaborating on the psychological argument that the philosophers had pioneered. In Federalist No. 78, Hamilton famously warned of short-term impulses' pernicious effects, decrying the "ill humors" that overtook the political branches.71 Hamilton's concern was the product of years practicing international law in New York, where he saw first-hand the ill effects of impulses that discounted the law of nations during the Articles of Confederation period.72 68. See Arizona v. United States, 132 S. Ct. 2492, 2498-99 ( 2012 ) (citing THE FEDERALIST No. 3, supra note 1, at 39 Uohnjay)). 69. See THE FEDERALIST No. 16, supra note 1, at 109 (Alexander Hamilton) (warning that foreign powers would seek to take advantage of confederation's weakness and dissension). 70. See THE FEDERALIST No. 42, supra note 1, at 262 (James Madison) (noting that such uniformity was "necessary and proper"). 71. See THE FEDERALISTNo. 78, supra note 1, at 469 (Alexander Hamilton). 72. See LAW PRACrICE, supranote 12, at 419. Hamilton's experience is revealed most vividly in the case of Rutgers v. Waddington.7 In Rutgers, Hamilton argued that the law of nations should govern interpretation of New York's Trespass Act, which allowed citizens to seek damages against British nationals who had seized their property during the war.74 Hamilton asserted that the law of nations shielded the defendant, who had seized the property in compliance with military orders.75 He argued that the case was nothing less than a contest over "national character."76 Nations in an earlier era may have given in to the impulse for revenge. However, Hamilton urged, this impulse clashed with the need for a stable peace treaty with Britain. According to Hamilton, widespread concern over the decades of war that had engulfed Europe and the New World had "refined" international norms and lent priority to a "principle of . . . amnesty."77 Others argued, in short-sighted fashion, that New York was under no obligation to obey the law of nations.78 Hamilton derided this parochial turn, contending that New York could no more shed the law of nations than it could detach itself from the "relations of Universal society."79 Agreeing with Hamilton's psychological account, the court read the law of nations into the New York law, rejecting the impulse toward "revenge" and the "hatred and animosity" revenge generates. 80 Instead, the court embraced "benevolence even towards our enemies."8' Viewing this more benign stance as an underlying principle of the law of nations, the court sought to avoid the "confusion" that would result "if each separate state should arrogate to itself a right of changing at pleasure [the] laws . . 73. See id. at 393. For a discussion of Rutgers, see Golove & Hulsebosch, supranote 34, at 963-66 (discussing Rutgers as guide to Hamilton's view that law of nations was part of American law and would exert salutary influence on US sensibilities), and John Fabian Witt, The Dismal Histoiy of the Laws of War, I U.C. IRVINE L. REV. 895, 899-905 ( 2011 ) (discussing Rutgers's importance). 74. See Golove &Hulsebosch, supranote 34, at 964-65. 75. Id. at 963-64. 76. See IAw PRACrIcE, supranote 12, at 362. 77. Id. at 361. 78. Id. at 367. 79. Id. 80. Id. at 400 n.*. 81. Id. 2013] SUPPORT CHARGES IN MILITARY COMMISSIONS . of the civilized world." 2 Even if revenge had been an acceptable impulse at some earlier time, New York now faced "a new situation," as part of "one of the nations of the earth" bound to comply with the law that bound those nations together.83 Because the Rutgers court's acknowledgment of the United States' "new situation" was a rarity during the Articles of Confederation period, the Framers feared that the temptations of impulse could sever the ties that sustained membership in the community of nations. The Framers' choices gave government the capacity to limit damage caused by individuals' shortsightedness. Violations of diplomatic immunity had roiled the Articles of Confederation period, as an assault in Philadelphia on the French Consul General Marbois and another such attack in New York ignited confrontations with European powers.84 Edmund Randolph, in his remarks opening the Constitutional Convention in Philadelphia, had cited these incidents and the states' perceived failure to control them as a central justification for a stronger federal government.85- Writing in Federalist No. 3, John Jay noted the challenge to peace posed by a "disunited America" in which disparate actors offended foreign powers.86 Stressing the psychological dimension, Jay warned that both individuals and American states were susceptible to "passions" 82. Id. at 405-06. 83. Id. at 400. 84. See Sosa v. Alvarez-Machain, 542 U.S. 692, 716-17 (2004) (noting that concern over "inadequate vindication of the law of nations persisted through the time of the Constitutional Convention"); see also Eugene Kontorovich, Discretion, Delegation, and Defining in the Constitution'sLaw of Nations Clause, 106 Nw. U. L. REV. 1675, 1692-93 ( 2012 ) [hereinafter Kontorovich, Discretion and Delegation] (discussing impact of episode on deliberations of the Framers). But see Curtis A. Bradley, The Alien Tort Statute and Article 111, 42 VA. J. INT'L L. 587, 640-41 (2002) (questioning the incident's importance); J. Andrew Kent, Congress's Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 TEx. L. REv. 843, 874-88 ( 2007 ) [hereinafter Kent, Define andPunish]. 85. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 24-25 (Max Farrand ed., rev. ed. 1966) (warning that, under the Articles of Confederation, "[i]f a State acts against a foreign power contrary to the laws of nations or violates a treaty, [the federal government] cannot punish that State, or compel its obedience to the treaty. It can only leave the offending State to the operations of the offended power. It therefore cannot prevent a war."); cf Kent, Define andPunish, supra note 84, at 897-99 (discussing Randolph's views). 86. See THE FEDERALIST NO. 3, supranote 1, at 36-37 (John Jay). unlawful combatancy a war crime, since this classification would have entailed substantially rewriting the law of nations. Only a standard far more deferential than the one articulated by the Hamdan II panel could support this result. However, here, too, the panel failed to explain the inconsistency between its approach and its handling of Quinn. The categorical approach has another, fundamental flaw, which also seems curious given the generally conservative tenor of previous opinions by the members of the Hamdan II panel. * In pondering the perils of the short-term impulses that the Define and Punish Clause seeks to tame, categorical theorists are notably one-sided. Champions of the categorical view excel at spotting the perils presented by states' overzealous enforcement. However, they are often less perceptive about the risks posed by non-state actors such as terrorist groups. Vattel recognized centuries ago that non-state actors operating without the state's mediating institutions could be exceedingly "dangerous."-4 9 The Framers shared this insight.o50 They realized, as the categorical theorists sometimes fail to, that the community of nations rests on control of both government and non-state actor overreaching. Judge Kavanaugh's previous opinions evinced a thorough understanding of the dangers of violent non-state actors. Indeed, some argued that an opinion cited in Hamdan II went too far in this direction, asserting that detention of suspected terrorists was not governed by international law.35 1 While Judge Kavanaugh rightly recognized in Hamdan II that the language of the Define and Punish Clause required attention to international law, that turn should also have encompassed appreciation for the dangers of violent nonstate actors, which the Framers shared with publicists like Vattel. A tailored definition of material support could reconcile these 348. See, e.g., al-Bihani v. Obama, 619 F.3d 1, 9-23 (D.C. Cir. 2010) (Kavanaugh, J., concurring in denial of rehearing en banc) (asserting, despite government's argument to the contrary, that international law of armed conflict did not circumscribe executive's authority to detain persons who were part ofAl Qaeda or associated forces). 349. VATTEL, supra note 11, availableat http://www.matrixfiles.com/LoN.pdf. 350. See, e.g., THE FEDERALISr No. 3, supra note 1, at 44 (John Jay) (warning about hostilities that caused "the slaughter of many innocent inhabitants" when individual states were "unable or unwilling to restrain or punish offenses" against Native American nations). 351. See al-Bihani,619 F.3d at 9-23. values. However, that reconciliation would have entailed an analysis more nuanced than the Hamdan II panel's categorical approach. V. THE MEMBERSHIP CONCEPTION AND MATERIAL SUPPORT If the US common law of war argument and the categorical approach fall short, the membership conception may do better at addressing the challenges of trying suspected terrorists after September 11. Since only some of the wide range of acts that could be charged as material support in an ordinary civilian court are consistent with military commission jurisdiction, courts applying the membership approach must tailor the material support provision as the Nuremberg prosecutors did with membership offenses, taking care to avoid amorphous charges that are not analogous to traditional crimes under the law of war. The result of that tailoring represents a modest extension of the aiding and abetting liability that international law currently accepts. That result should receive a measure of deference, as the Framers, case law, and international law contemplate. A. Deference and Complementarity We have already seen that the publicists, Framers, and subsequent courts carved out a zone of deference for the state's definition of its duties under international law. Factors contributing to this measure of deference included the breadth and dynamic nature of international law, 352 the particular needs of each state and hazards of foreign factions, and the utility of the separation of powers as a guarantor of core international principles. The international law principle of complementarity similarly provides a measure of deference, particularly where a state's internal institutions have some indicia of independence. The case for deference that was persuasive to the Framers has if anything grown more compelling with time. Consider the 352. See THE FEDERALIST No. 37, supra note 1, at 228-29 (James Madison); supra notes 111-12 and accompanying text. 2013] Framers' fear of foreign faction. In recent decades, the cardinal example from the law of war is the passion of non-aligned nations and those under the sway of the former Soviet Union for proposed changes codified in Additional Protocol I of the Geneva Convention.353 These changes made it easier for violent non-state actors to forsake uniforms and other insignia of combatancy.354 Released from those rules, non-state actors such as terrorist groups would have more readily mounted perfidious attacks on civilians and government targets.355 While the United States has declared that it recognizes other, less controversial portions of Additional Protocol I as customary international law,35 6 it has declined to ratify the entire agreement, and other countries have only done so with express reservations. 357 Suppose that the United States sought to use military 353. See generally Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I]. 354. See id. § 44; cf Michael A. Newton, Exceptional Engagement: ProtocolI and a World United Against Terrorism, 45 TEX. INT'L L.J. 323, 344-47 (2009) (discussing political crosscurrents that contributed to enactment of Protocol I). But see Kim L. Scheppele, The InternationalStandardizationofNationalSecurity Law, 4J. NAT'L SECURITY L. & POL'Y 437, 451 (2010) (arguing that global counterterrorism measures permit many states to camouflage their substandard governance as counterterrorism); Sudha Setty, ComparativePerspectives on Specialized Trialsfor Terrorism,63 ME. L. REV. 131, 153 (2010) (suggesting that policies in the United States, United Kingdom, and India invite concerns about the effect of counterterrorism efforts on human rights). See generally JACK GOLDSMITH, THE TERROR PRESIDENCY LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 59 ( 2007 ) (critiquing incentive structure of nongovernmental groups that critique foreign policy of Western powers); Kenneth Anderson, "Accountability" as "Legitimacy": Global Governance, Global Civil Society and the United Nations, 36 BROOK. J. INT'L L. 841 ( 2011 ). 355. See Newton, supranote 354, at 344-47. 356. This is true, for example, of the principle of proportionality, which requires that attackers avoid excessive collateral damage in achieving a military advantage. See Additional Protocol I, supranote 353, at arts. 52, 57; Koh, supranote 55 (noting that US views proportionality as binding international law when making targeting decisions); see also Michael J. Matheson, The United States Position on the Relation of Customary InternationalLaw to the 1977 ProtocolsAdditional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. &POL'Y 419 (1987) (discussing the American view ofAdditional Protocol 1); cf (discussing legal compliance encouraged by US military lawyers); Monica Hakimi, A FunctionalApproach to Targetingand Detention, 110 MICH. L. REv. 1365, 1391-97 ( 2012 ) (outlining an integrated approach to targeting and detention based on factors including whether a less drastic alternative exists); Neomi Rao, Public Choice and InternationalLaw Compliance: The Executive Branch is a "They,"Not an 'It",96 MINN. L. REV. 194,238-43 ( 2011 ). 357. See Newton, supranote 354, at 347-53. commissions to try terrorists who had targeted its personnel for perfidious attacks. The text, purpose, and history of the Define and Punish Clause would counsel deference to that decision, not obeisance to the faction-driven changes in Additional Protocol I. International law has also traditionally provided some measure of deference to state determinations. Consider the principle of complementarity,38 which requires that international tribunals such as the International Criminal Court (ICC) intervene to prosecute alleged perpetrators of crimes against humanity only when national institutions have defaulted on this duty.39 In considering a state's choices, some quantum of deference is required. State officials will often understand the political culture and needs of their polity in a way that exceeds the ability of international actors parachuting in from abroad. * In addition, encouraging national efforts gives states a stake in the international order. Armed with this stake, states can build robust internal capacities for vindicating the rule of law.361 Without such a stake, states will abandon the long-term perspective that international law demands and revert to the reign of short-term impulse.36 2 The case for deference is even stronger in the context of a state's use of military commissions to try violent non-state actors. In considering the deference due a state's efforts to investigate crimes against humanity by its own officials, international law balances the prerogatives of the state against the need to disrupt the culture of impunity that often lingers around such crimes. 363 2013] However, a state's use of military commissions to try individuals for alleged violations of international law does not bolster the culture of impunity. If anything, it combats this syndrome, giving the state more remedies against violence. This deference should not be absolute, since a state's profligate use of military commissions can be just as oppressive as its failure to hold officials accountable for past human rights violations. However, a measure of deference in these instances serves the same beneficial ends as the principle of complementarity, giving the state a stake in engagement with international law.M A post-September 11 innovation in the United Nations's cooperation on terrorism strengthens the case for deference. Shortly after September 11, the United Nations Security Council put out a resolution requiring states to cooperate in worldwide counterterrorism efforts.3 66 As both Congress and the Challenging Admissibility of Case, 1 39-43 (Aug. 30, 2011), available at http://www.icc-cpi.int/iccdocs/doc/docl223134.pdf (holding that ICC proceeding would not violate principle of complementarity under Article 17(1) (a) of Rome Statute when the state had failed to investigate an individual already charged by tribunal); see also Michael A. Newton, The Quest for Constructive Complementarity 9 (Vanderbilt Univ. Law Sch. Pub. Law & Legal Theory, Working Paper No. 10-16, 2010), available at http://ssrn.com/abstract=1585402 (arguing that Rome Statute "requires ... an appropriate balance of authority between the supranational court and domestic states"); cf Diane F. Orentlicher, "SettlingAccounts"Revisited Reconciling Global Norms with Local Agency, I INT'L J. TRANSITIONAL JUsT. 10 ( 2007 ) (discussing the balance between deference to states and commitment to universal principles). 364. For other instances of deference in transnational tribunals, see Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) at 47 (1976) (granting a "margin of appreciation" to state decision banning a book on sexuality marketed to teenagers); see also Robert D. Sloane, Human Rightsfor Hedgehogs?: Global Value Pluralism,International Law, and Some Reservations ofthe Fox, 90 B.U. L. REV. 975, 983 (2010) (allowing that the "margin of appreciation" confers flexibility on sovereign states so that they may "implement or interpret human rights in ways that may be sensitive or responsive to prevailing social, cultural, and other norms within their polities"); Council of Europe Comm. of Ministers, Brighton Declaration, High Level Conference on the Future of the European Court of Human Rights, (19-20 April, 2012), available at http://hub.coe.int/20120419-brighton-declaration (noting that margin ofappreciation is vital because "national authorities are in principle better placed than an international court to evaluate local needs and conditions"); cf M6nica Pinto, National and InternationalCourts-Deferenceor Disdain?,30 LOY. L.A. INT'L & COMP. L. REV. 247, 257-63 (2008) (noting that Inter-American Court of Human Rights does not rely on a "margin of appreciation", but uses analogous "fourth instance" doctrine to limit intrusion in domestic law). 365. SeeS.C. Res. 1373, l(d) U.N. Doc. S/RES/1373 (Sept. 28, 2001) (holding that "states are required to prohibit anyone within their personal or territorial jurisdiction from making any "funds, financial assets or economic resources . . . Humanitarian Law Project Court indicated, the complex task of reducing the flow of resources to DFTOs entails global cooperation. 66 While the Security Council did not expressly authorize military commissions, its resolutions contemplate a more robust role for domestic law enforcement. Appropriately cabined military commissions can supplement domestic law enforcement, providing an additional option when ordinary civilian courts are inadequate or unavailable.367 A categorical approach to military commission jurisdiction that precluded resort to this option would clash with the spirit, if not the letter, of Security Council measures. In contrast, granting states a measure of discretion in shaping military commission jurisdiction facilitates the state cooperation that is crucial to the membership project against terrorism. Congress should receive a measure of deference on the nexus it designates between charges in military commissions and conduct previously tried in such tribunals pursuant to international law. While champions of the categorical approach available . . . for the benefit of persons who ... commit . . . or participate in the commission of terrorist acts"); cf Scheppele, supra note 354, at 440 (arguing that S.C. Res. 1373 has provided pretext for antidemocratic crackdowns). 366. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2726 (2010) (noting importance of "cooperative efforts" and "international cooperation" for a successful response to terrorism). 367. Cf Aziz Huq, Forum Choicefor TerrorismSuspects, 61 DUKE L.J. 1415, 1454-68 ( 2012 ) (arguing that availability of military commissions as additional option in appropriate cases promotes more efficient process); Matthew C. Waxman, AdministrativeDetention of Terrorists:Why Detain, and Detain Whom?, 3 J. NAT'L SEC. L. & POL'Y 1, 17-23 (2009) (discussing different criteria for administrative detention). Others have argued that establishing a national security court is a useful alternative to both ordinary federal courts and military tribunals; Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminaland Military Detention Models, 60 STAN. L. REV. 1079 (2008) (discussing relative advantages and overlapping principles in Article III courts, detention, and military commissions);. See generally Kevin E. Lunday & Harvey Rishikof, Due Process is a Strategic Choice: Legitimacy and the Establishment of an Article III NationalSecurity Court,39 CAL. W. INT'L L.J. 87 (2008). 368. Courts should accord even greater deference to a statute that operates prospectively, raising none of the retroactivity problems that the Hamdan H1 panel perceived in the Military Commission Act's inclusion of material support. See Hamdan H,696 F.3d at 1246 n. 6 (observing, in portion of opinion concurred in only by Judge Kavanagh, that Congress has authority under war powers to prospectively allow material support charges); but see United States v. Bellaizac-Hurtado, 7 (11th Cir. Nov. 6, 2012), at *21-35 (holding that Congress lacked power under Define and Punish Clause to prospectively criminalize drug trafficking on vessels located in territorial waters of other nations). argue that Congress should only be permitted to authorize trial of charges that have been tried in military tribunals previously, Congress may also elect to pursue the trial based on a functional nexus. Under a functional approach, the specific conduct charged should dovetail with conduct that earlier material commissions have tried and punished.369 As long as the conduct in each context overlaps, defendants have the notice that the law of nations requires. As we shall see, a functional test will permit material support charges that allege certain conduct linked to unlawful violence, although it will bar charges alleging conduct without such links. B. TailoringMaterialSupport While categorical theorists assert that a decision-maker should look merely at the name of the offense to determine whether it fits within Congress's power, neither international nor domestic tribunals have taken this approach. Both transnational and domestic tribunals have instead tailored charges to the boundaries of conduct that may be punished under the Constitution and international law. In domestic courts, the interpretation of statutes in light of the law of nations pre-dates the Constitution's enactment. The Rutgers v. Waddington court followed international law and interpreted New York's Trespass Act as protecting a British merchant who had followed military orders, even though the statute expressly precluded a military orders defense.370 After the Constitution's enactment, Chief Justice Marshall's formulation of the Charming Betsy canon tailored legislation that clashed with international law.37' The Nuremberg prosecutors' narrowing of membership offenses was also a species of tailoring. Each parallels federal courts' avoidance, exhibited in 369. Cf Ohlin, supra note 340, at 86-87 (providing a functional definition of membership in Al Qaeda that would justify targeting and detention). 370. See LAW PRACTICE, supra note 12, at 417; Golove &Hulsebosch, supranote 34 at 969-70. The blowback in the political realm from the court's decision was considerable. See DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE: NEW YORK AND THE TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD, 1663-1830, at 199-201 (2005) (discussing claims of the decision's critics that reliance on international law was illegitimate). 371. See Wuerth, supra note 93. the recent healthcare decision, of statutory interpretations that clash with constitutional requirements. 372 The clear line of hermeneutic method from Hamilton to Marshall to health care suggests that tailoring is a prudent hedge against the "momentary inclination" to fray the fabric of constitutional and international norms.? 3 C. Tailored MaterialSupport andAiding andAbetting Liability A tailored version of material support charges would look much like aiding and abetting. The accepted definition needs to be more limber to accommodate some charges of material support. However, the tailored definition would still preclude the broadest uses of the federal criminal prohibition. Our touchstone on aiding and abetting liability is the codification effort by the International Law Commission (ILC). The ILC noted that collective attributions of guilt were generally inappropriate, and that conviction of crimes against humanity such as the murder of civilians rested on "individual responsibility." 374 The ILC recognized that individual responsibility could include the actions of one who "I[k]nowingly aids, abets or otherwise assists, directly and 372. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2594 ( 2012 ) (holding that the avoidance canon counseled construing the penalty imposed by Patient Protection and Affordable Care Act of 2010 for individuals who fail to purchase health insurance as a tax); see also Yates v. United States, 354 U.S. 298, 318 (1957) (avoiding "constitutional danger zone" of suppression of ideas through narrow reading of statute that prohibited membership in organizations such as the Communist Party, which advocated for forcible overthrow of the United States government). For more on the avoidance doctrine, see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-48 (1936) (Brandeis, J., concurring); cf ANTONIN SCALIA & BRYAN A. GARNER, READING ILAW: THE INTERPRETATION OF LEGAL TEXTS 247-51 ( 2012 ) (praising doctrine); Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the PreservationofJudicial Review, 78 Tex. L. Rev. 1549, 1550 (2000) (discussing rationale for avoidance). But see Frederick Schauer, Ashwander Revisited, 1995 SUP. Cr. REV. 71 (1996) (expressing skepticism about legitimacy and utility of doctrine). 373. THE FEDERALIST No. 78, supranote 1, at 468 (Alexander Hamilton) (noting that the "independence of the judges is .. . requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which ... the influence of particular conjunctures, sometimes disseminate among the people themselves"). 374. See Report Of The InternationalLaw Commission on the Work of its Forty-eighth Session, Draft Code of Crimes against the Peace and Security of Mankind with commentaries, art. 2, U.N. Doc. A/51/10 (May 6-July 26, 1996) [hereinafter ILC Draft Code]. substantially, in the commission of ... a crime." 75 The commentary to this section noted that the accomplice must "knowingly provide . . . assistance which facilitates the commission of a crime in some significant way."376 Aiding and abetting liability includes assistance after the crime's commission, as long as the perpetrator and accomplice agreed on this assistance before the fact.3" Assistance that a perpetrator knows will be forthcoming upon commission of a crime facilitates commission of the crime just as surely as direct assistance before the fact. 78 Aiding after the fact is an in-kind insurance policy, guaranteeing that the perpetrator will not face obstacles that may well have dampened the perpetrator's ardor for the entire operation. Aiding and abetting liability covers many of the offenses supposedly included in the "U.S. common law of war." 79 The bridge-burning cases clearly fall under this rubric, with most defendants convicted of conduct that entailed concrete assistance to acts of violence against government targets.o80 The bushwhacker cases often involved similar proof of violence against civilian persons and/or property, in the context of units so small that an individual who slacked off in engaging in such conduct would receive substantial and immediate peer pressure from his colleagues in crime.38' The Nuremberg prosecutors' refinement of the London Charter's "membership offenses" is also analogous to aiding and abetting liability, albeit with somewhat greater play at the joints. The bushwhacker scenario explains the conviction of the noncommissioned officer Graf, who was part of the murderous einsatzgruppenthat engaged in face-to-face killing of hundreds of 375. Id. art. 2 1 3(d). 376. Id.art. 2 Commentary, I 11. 377. Id. art. 2 Commentary, 1 12. 378. See Grant Dawson & Rachel Boynton, Reconciling Complicity in Genocide and Aiding and Abetting Genocide in theJurisprudenceof the United NationsAd Hoc Tribunals,21 Harv. Hum Rts. J. 241, 271 (2008) (noting importance of perpetrator's knowledge prior to crime's commission that he would receive help afterward). 379. See supra notes 309-29 and accompanying text. 380. See supra notes 208-09 and accompanying text (describing how bridgeburners were often complicit in acts against the government). 381. See supra note 210 and accompanying text (outlining the establishment of commissions to prosecute bushwackers). thousands of civilians in Central and Eastern Europe.8 2 Although Graf was reluctant to continue in the unit - a fact that reduced his sentence-it would be difficult for a noncommissioned officer in such a unit to avoid conduct such as assisting in transportation or logistics that facilitated the einsatzgruppen'sactivities. A later case arising out of the activities of the einsatzgruppen is PublicProsecutorv. Menten3,83 in which a Dutch court convicted a translator of crimes against humanity in connection with the killing of Jews, Polish nationalists, and suspected communists. Although the trial occurred decades after the events in question and evidence of the defendant's participation in actual killing was slim, 384 the court found that Menten had assisted forces engaged in killing through his services as a translator385 and his "accurate knowledge of persons and places" in the area.386 Aiding and abetting also covers the conduct of the German financiers and industrialists like Flick and Steinbrinck who banded together as "Friends of Himmler" to assist the SS's murderous mission.387 An efficient war crimes machine requires care and feeding, and Flick and Steinbrinck provided the resources that made that possible. The tribunal also found that they contributed eagerly with full knowledge of the SS's lethal activities.388 More recent cases have often involved leaders in armed conflicts that resulted in the murder of civilians and rampant 382. See TRIALS OF WAR CRIMINALS, supra note 264, at 587 (finding Graf guilty of membership in the SD). 383. Public Prosecutor v. Menten, 75 I.L.R. 331 (Neth. Sup. Ct. 1981). 384. Id. at 345 (noting that defendant's joint responsibility was proven, although his "exact part [in the killings] could not be precisely established after such a long time"). 385. Id.at 347. 386. See id. at 351, 360, 365 (discussing defendant's use of his skills to aid the police and render "incidental services" to unit). 387. See See 6 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAw No. 10, at 1221 (1952) (finding that the donation of money to Himmler, which in turn went to fund illegal activities, was sufficient for conviction). 388. Id. at 1216, 1222-23 (noting that Flick and Steinbrinck were convicted of having "knowledge of the criminal activities of the SS [and still] contribut[ing] funds and influence to its support." sexual abuse of women. In Prosecutor v. Krstic,389 the ICTY convicted a Serbian commander of aiding and abetting genocide in connection with the killing of thousands of Bosnian Muslim men. More recently, the Special Court for Sierra Leone convicted the Liberian leader Charles Taylor of aiding and abetting murder, mutilation, and sexual abuse in Sierra Leone by providing arms and logistical support to groups that engaged in such activity."90 The court defined aiding and abetting broadly as lending "practical assistance, encouragement, or moral support to the perpetration of a crime or underlying offence."39' Although two of the recent cases involved leaders, nothing in aiding and abetting liability restricts the class of defendants to this small group. Small fish can also play a significant role, depending on the nature of their conduct. Material support charges that entail analogous types of assistance and knowledge therefore build on a solid international law foundation. Bringing material support within the aiding and abetting fold would prompt a split decision in Hamdan II and al BahluL Consider Hamdan's conviction first. As discussed above, the law of nations spurs doubts about Hamdan's conviction, which hinged neither on specific unlawful acts of violence nor on performance of a substantial role in an organization dedicated to such violence.392 The difficulty of shoehorning Hamdan's conviction into one of these rubrics suggests that the outcome may be difficult to uphold, even if courts ultimately reject the categorical approach adopted by the D.C. Circuit in HamdanII. On the surface, it might be persuasive for the US to take a different tack, arguing that Hamdan violated international law as an "unprivileged belligerent" in Afghanistan. Hamdan had not received the approval of Yemen, his country of origin, for his activities. He arguably broke the neutrality norms enforced by the US against its own nationals since Washington's Neutrality Proclamation. One could analogize Hamdan, who did not wear a standard uniform, to the banditti whom Henry, Adams, and Speed asserted could have been hung from the nearest tree. However, this view would conflate the two levels of generality that the Framers built into the Define and Punish Clause. At the time it was enacted, the Define and Punish Clause embodied not merely the specific principles of the law of nations in place during that period, but the future contours of this body of law.393 The Framers recognized that these principles were always evolving.394 Even more than the open-textured constitutional guarantees of liberty and equality, the reference to the law of nations in the Define and Punish Clause indicates that the Framers drafted the Clause to reflect that evolution. The Framers understood that while international law's fluidity often defies codification, a definitive expression of international sentiment can create new norms and modify old ones. As Edmund Randolph hinted in his early discussion of the Define and Punish Clause, the US can adhere to international law principles that have encountered pushback from some parties, but cannot exhume principles that the weight of international opinion has buried.-95 Today, a definitive expression of international opinion bars casting mere unprivileged belligerency as a war crime. Additional Protocol I of the Geneva Convention allows hostile parties to a conflict to decline to wear uniforms until the moment they are "engaged in a military deployment preceding the launching of an attack."196 While the US, which has not ratified Additional Protocol I, is entitled to targeP97 and detain98 such fighters, a majority of nations reject trialof these fighters for war crimes absent direct involvement in unlawful violence or the performance of a substantial role within such an organization. US practice, exemplified in Quinin, has treated mere unprivileged belligerency as a war crime, but only in conjunction with other concrete acts, such as espionage and sabotage, 99 which the government did not allege that Hamdan had committed. Hamdan's arms sales might qualify as trading with the enemy, but only if he had owed a duty of loyalty to the US or had traded weapons during the US occupation. Since these factors do not fit Hamdan, a Yemeni national who was captured during the initial fighting in Afghanistan after September 11, the law of nations as presently constituted deprives military commissions ofjurisdiction. Al Bahlul's conduct is a closer call. Since al Bahlul engaged in after-the-fact distribution of martyr's wills for two of the September 11 hijackers,400 his acts provide a closer nexus with a specific Al Qaeda operation that targeted civilians. Moreover, the attackers and al Bahlul's superior, Osama bin Laden, viewed the propaganda advantage reaped by September 11 as a central rationale for the attacks themselves. This supplies the before-theInternationalLegal Regulation of Lethal Force, 13 Y.B. INT'L HUMANITARIAN L. 3 ( 2011 ) (analyzing issues around the US targeting and use of lethal force against al-Awlaki); Hakimi, supranote 356. 398. See Robert M. Chesney, Who May Be Held? Military Detention Through the Habeas Lens, 52 B.C. L. REv. 769 ( 2011 ); Ryan Goodman, The Detention of Civiliansin Armed Conflict, 103 AM. J. INT'L L. 48, 53-55 (2009) (describing the types of persons who may be detained). 399. See Ex ParteQuirin,317 U.S. 1, 35-36 (1942). 400. Al Bahlul acknowledged that he "'typed' or 'transcribed'" martyr's wills after the attacks. See Brief of Petitioner at 7, al Bahlul v. United States, No. 11-1324 (D.C. Cir. Mar. 9, 2012). Al Bahlul has claimed that he was at home in Yemen, not with bin Laden, when the wills were first drafted and read on tape by the hijackers, thus precluding any before-the-fact role. See id. at 7-8; see also Transcript of Military Commission Hearing at 193-94, United States v. al Bahlul, 820 F. Supp. 2d 1141 (Ct. Mil. Comm'n Rev. 2011) ( No. CMCR 09-001), availableat http://www.mc.mil/cases/ militarycommissions.aspx (hereinafter al Bahlul Transcript) (recounting testimony of defendant that he "did not have the honor" of initially drafting or filming martyr's wills). The Court of Military Commission Review took a somewhat broader view of al Bahlul's role, describing him as having "prepared... 'martyr wills' to motivate [hijackers] . .. to commit the 9/11 attacks." See United States v. al Bahlul, 820 F. Supp. 2d 1141, 1162 (Ct. Mil. Comm'n Rev. 2011). fact agreement that the ILC demands. 1* In addition, al Bahlul's role as a media adviser to bin Laden placed him near the center of Al Qaeda policy.* 2 This moves al Bahlul's case closer to those of the "Friends of Himmler," Steinbrinck and Flick, who knowingly provided substantial financial support and encouragement to the SS chief and fit the tailored version of membership offenses advanced by American prosecutors at Nuremberg. A similarly tailored version of material support would sustain al Bahlul's conviction. D. ConspiracyAfter HamdanH Even if one agrees with the Hamdan II panel that material support isn't a violation of the law of nations, the future of conspiracy charges in military commissions may be brighter. True, there are significant problems with conspiracy, either as a mode of liability requiring a completed crime (the view in France and other civil law countries) or as a separate offense requiring only an agreement and some overt act furthering the agreement (the view under ordinary US criminal law). That said, conspiracy is a plausible mode of liability in military commission cases, including al BahluL However, international law and practice dim the prospects for charging conspiracy as a separate and independent offense. Applying the Hamdan II analysis, conspiracy's main edge over material support is its pedigree in international treaties, case law, and commentary. The lack of this pedigree was fatal to 401. Cf Max Abrahms, What Terrorists Really Want: Terrorist Motives and Counterterrorism Strategy, 32 INT'L SECURrlY 78, 85-86 (2008) (discussing terrorists' incentives). 402. For precedents holding propagandists liable, see TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 548 (1948) [hereinafter IMT Trials] (convicting Nazi propagandistJulius Streicher, who had "injected [poison] ... into the minds of thousands of Germans ... [and] caused them to follow the National Socialist policy ofJewish persecution and extermination"); see also Prosecutor v. Nahimana, Case No. ICTR-99-52-A, Summary of Judgement (Nov. 28, 2007) (affirming convictions of a number of defendants who owned or operated media outlets for incitement and instigation of genocide in Rwanda, while vacating other convictions). But see IMT Trials, supra, at 584-85 (acquitting a more junior propagandist, Hans Fritzsche, due to findings that his acts were ministerial in nature and speeches he wrote "did not urge persecution or extermination ofJews"); TAYLOR, supra note 259, at 461 (noting that Fritzsche's "influence on policy was only interstitial"). material support in Judge Kavanaugh's Hamdan II opinion.** Conspiracy's lineage is more substantial. First consider the pedigree of conspiracy as a mode of liability. Analysis begins with the 1996 ILC Draft Code of Crimes Against Peace and Security of Mankind.404 Article 2(e) of the Draft Code prohibits "planning or conspiring" to engage in war crimes, such as targeting civilians, that "in fact occur." The ILC Draft Code's standing provides some evidence of conspiracy's acceptance, of the kind that the Hamdan II panel found lacking in the case of material support. Conspiracy as mode of liability, however, encounters problems elsewhere in the indicia of legitimacy that Judge Kavanaugh outlined in his opinion for the court. The London Charter governing the Nuremberg tribunals expressly provided for conspiracy, and the Nuremberg tribunals permitted such charges, albeit in a limited manner."5 The statutes of more recent tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), are more restrictive. They do not include conspiracy as a mode of liability, although they do allow charging conspiracy to commit genocide (and genocide only) as a separate offense." 6 Whether this is an insurmountable obstacle depends on how one reads Judge Kavanaugh's opinion. If one reads the indicia of authority in the opinion as conjunctive, conspiracy as mode of liability is problematic. On this view, the failure to include conspiracy as a mode of liability in the statutes of the ICTY and other recent tribunals would be fatal. However, one can also read Judge Kavanaugh's discussion as a more flexible guide to the range of authority that could support military commission jurisdiction. On this more flexible view, the ILC's endorsement of conspiracy would still be meaningful, along with conspiracy's inclusion in the London Charter of the Nuremberg tribunals. This pedigree also creates room for the analogical reasoning thatJudge Kavanaugh rejected in the case of material support. As Cornell's Jens David Ohlin mentions in an important recent article,40 conspiracy as a mode of liability shares many attributes with another mode of liability involving concerted activity, Joint Criminal Enterprise (JCE), which is included in the statutes of recent tribunals and figures heavily in the case law. For example, Article 25(3) (d) of the Rome Statute of the International Criminal Court permits the conviction of an person who "contributes to the commission... of... a crime by a group of persons acting with a common purpose."40 This pairing ofjoint intention with action is very close to conspiracy close enough that no individual charged with the latter as a mode of liability can claim lack of notice. Consider how this plays out in the case of bin Laden's propagandist, al Bahlul. Al Bahlul was convicted of both material support and conspiracy under the Military Commissions Act of 2006, which authorizes conspiracy as both a mode of liability and a separate offence. Al Bahlul, as an aide to bin Laden, was obviously below bin Laden's pay grade, and it's unclear whether he had advance, specific knowledge of the 9/11 attacks. However, he clearly contributed to the attacks before and after the fact. Evidence includes al Bahlul's closeness to the Al Qaeda leader, knowledge of earlier attacks on civilians such as the East Africa embassy bombings, admitted administration of the bayat or loyalty oath to two of the 9/11 hijackers including ringleader Muhammed Atta,4"1 and acknowledgment that after the attacks he distributed his two prot6g6s' martyr's wills justifying their role. Al Bahlul's contributions to the attacks through administration of the bayat and distribution of the martyr's wills meet the requirements for JCE, and should 407. See Ohlin,JointIntentions,supra note 405. 408. See Rome Statute, supra note 359, art. 25(3) (d). 409. See Brief for Respondent at 9-10, Al Bahlul v. United States, No. 11-1324 (D.C. Cir. May 16, 2012) (hereinafter al Bahlul, Brief for Respondent) (summarizing evidence at trial). therefore also fit under the rubric of conspiracy as a mode of liability. 410 The viability of conspiracy to commit war crimes as a separate offence is a tougher question. Here, too, conspiracy crosses Judge Kavanaugh's first threshold, since a range of treaties mention it. For example, Article 6 of the London Charter that governed the International Military Tribunal (IMT) at Nuremberg permitted charges of "conspiracy for the accomplishment of" crimes against peace. These crimes included aggressive war and war in violation of treaties. However, the specific definitions of war crimes and crimes against humanity, which followed the definition of crimes against peace in the Charter, did not include conspiracy language. When Justice Robert Jackson, the head Nuremberg prosecutor, submitted indictments that also charged conspiracy to commit war crimes, the IMT swatted away Jackson's attempt, ruling that it lacked jurisdiction.' Current treaties, statutes, and tribunals track this pattern. The Genocide Convention makes conspiracy a stand-alone offence. Because of the Convention's inclusion of conspiracy, the statutes of tribunals such as the ICTY and the International Criminal Tribunal for Rwanda (ICTR) also permit charging conspiracy to commit genocide as a stand-alone crime. 412 However, as Cornell's Ohlin notes, these tribunals have repeatedly expressed skepticism about conspiracy, perhaps because of long-standing worries in civil law systems about the 410. Al Bahlul's trial gave rise to another problem related to the distinction between conspiracy as mode of liability and separate offense. The military jury in the case made findings regarding conspiracy as a separate offense, but did not make findings regarding conspiracy as a mode of liability. In other words, it found an agreement, but not a completed underlying act such as the murder of civilians. However, al Bahlul's own testimony conceded that the 9/11 attacks had occurred. See al Bahlul Transcript, supranote 400, at 193-94 (asserting that his stay in Yemen precluded his having "honor" of videotaping martyr's wills of hijackers). Al Bahlul litigated his case as if he was being charged with conspiracy as a mode of liability based on the 9/11 attacks. The militaryjury found that he had committed acts relating to the 9/11 attacks, including administering the oath of allegiance to two of the 9/11 hijackers and "preparing" their martyr's wills. See al Bahlul Respondent Brief for Respondent, supra note 409, at 13, 16. Therefore, treating the occurrence of the 9/11 attacks as an undisputed fact would not result in prejudice. 411. See Bush, supranote 259, at 1162. 412. See Statute for the International Criminal Tribunal for Rwanda art. 2(3)(b), Nov. 8, 1994, 33 I.L.M. 1498. vagueness such charges might yield. Moreover, no treaty permits charging conspiracy to commit war crimes, such as targeting civilians, as an independent offence. The Military Commissions Act of 2006 is thus an outlier in this regard. One can argue that the inclusion of conspiracy for genocide but not war crimes is a function of pragmatism, not principle. Genocide may be a crime of unique dimensions, but that does not justify rejecting the added deterrence that standalone conspiracy charges might yield for other serious crimes, such as mass killing of civilians that falls just short of genocide. However, the argument that international law should treat war crimes and genocide equally echoes the natural law concepts that dominated international law until the nineteenth century. This period saw the gradual eclipse of "naturalist" principles in international law and the ascendancy of positivism - what the law is, not what it should be."' Moreover, the failure to include conspiracy to commit war crimes as a separate offence in treaties and case law raises the concerns about retroactive application and the Ex Post Facto Clause that Judge Kavanaugh stressed in Hamdan II. If a trained lawyer assessing the relevant authorities would not anticipate this charge, a lay defendant would not either. That makes lack of notice a problem of constitutional scale. Evidence from US history is does not trump the positivist trend or provide the notice otherwise lacking. First, as Judge Kavanaugh rightly noted, under the Constitution's Define and Punish Clause, there is no distinct "U.S. common law of war" that trumps international law. Second, the United States Supreme Court endorsed the positivist trend in The Antelope, in which Chief Justice Marshall explained that slavery was not yet a violation of customary international law, although he readily acknowledged that it might become one.414 Third, it is true that the United States has a history of filing conspiracy charges in military commissions, as plotters of Lincoln's assassination discovered. However, as Justice Stevens noted in HamdanI, most conspiracy charges entailed completed crimes. This history 413. See Duncan B. Hollis, Treaties in the Supreme Court, 1861-1900, in INTERNATIONAL LAW IN THE U.S. SUPREME COURT: CONTINUTIY AND CHANGE, supra note 198, at 55, 62-65. 414. The Antelope, 23 U.S. 66, 121-22 (1825). suggests the United States, like Europe, did not develop what Madison in Federalist No. 37 called a "course of practice" in charging conspiracy to commit war crimes as an independent offence. Viewed in this light, conspiracy after Hamdan II requires careful tailoring. Military commissions do not have jurisdiction over conspiracy as a separate offence. They should, however, have jurisdiction over conspiracy as a mode of liability. CONCLUSION Tailoring of both conspiracy and material support charges is consistent with the membership conception that the publicists and Framers embraced. Publicists like Vattel and Pufendorf viewed membership in the community of nations as valuable precisely because it remedied the effects of short-term impulses. The publicists also envisioned institutional arrangements, like separation of powers, which would resist impulse's rule and facilitate reflection. The Framers refined these sentiments, seconding Hamilton's claim that embracing the guidance of international law was a test of "national character."415 The enactment of the Define and Punish Clause was a crucial manifestation of the membership conception. In drafting the clause, the Framers had two goals. They sought to signal to the community of nations that the new Republic would live by the same rules as other states. These rules, as the Framers defined them, included the procedural safeguards that Randolph extolled in his debate with Patrick Henry on the propriety of summary execution. At the same time, the Framers were worried about factions from abroad exerting undue influence and prompting volatility in the sometimes amorphous elements of the law of nations that Madison warned about in Federalist No. 37. The Define and Punish Clause's delegation to Congress sought to comply with international law while preserving a zone of deference to combat individuals and entities who threatened global cooperation. American practice from the Founding Era to the present largely tracks the membership conception. As the first Attorney 415. LAw PRActiCE, supra note 12, at 393. General, Randolph affirmed the Define and Punish Clause's limits on congressional power. However, the perils of foreign influence during this period, manifested in controversies over neutrality and the Jay Treaty, suggested the need for a space where the new nation could accommodate international law to its own needs. Judicial tailoring could supply the reflection that the political branches sometimes lacked, as Chief Justice Marshall's opinion in the Charming Betsy case showed. The piracy and counterfeiting contexts also displayed deference to congressional determinations of danger to the United States, although United States v. Furlong indicated that cases of wrongdoing without clear links to the United States would encounter special scrutiny. Tailoring also played an important role in the Civil War military commissions, where executive review - sometimes by Lincoln himself - helped assure that most verdicts involved direct participation in violence or breaches of citizens' duty of loyalty. The outlier in this narrative was Jackson's military commission for Arbuthnot, which relied on questionable evidence presented without procedural safeguards. Jackson's legendary vindictiveness aside, American practice has continued to echo the membership conception. During World War II, Quirin upheld prosecution on espionage and sabotage charges, whose long pedigree in military commissions provided the notice that fairness required. Addressing due process concerns, American prosecutors at Nuremberg dramatically scaled down membership offenses, focusing on acts of violence or substantial roles in organizations that promoted such acts. The plurality opinion on conspiracy by Justice Stevens in the Supreme Court's 2006 Hamdan decision stressed the separation of powers, noting that President Bush's unilateral attempt to create military commissions embodied an impulse toward tyranny that did not plague Congress's exercise of power under the Define and Punish Clause. Yet Stevens' analysis of conspiracy liability suggested that the Court would not be a rubber stamp, even for Congress. The consensus in American practice favoring the membership conception encounters fresh challenges in Congress's authorization of material support prosecutions in military commissions. The breadth of the federal criminal law statutes barring material support would permit military commissions trials based on alleged conduct, such as providing nominal financial support or training in nonviolence to Al Qaeda, even though such charges have not previously been triable in this forum. To salvage the material support convictions of both Salim Hamdan and Ali Hamza al Bahlul, the government has turned to a novel theory which posits a "U.S. common law of war." However, the government's answer compounds the challenges posed by material support charges in military commissions. Positing a US common law of war turns the Framers' careful design on its head. As we have seen, the Define and Punish Clause was drafted to show that the new nation would curb the violations of international law, such as attacks on ambassadors and flouting of treaties, which plagued the Articles of Confederation period. The Framers would have been baffled by a theory that allowed Congress to by-pass this constraint. The Framers would also have rejected the categorical account of military commission jurisdiction that opposes the government's position. That account seeks to reduce the vast realms of international law to handy recipe cards noted by Madison in Federalist No. 37. Under this rote approach, the labels attached to charges mean everything, while the actual conduct charged in military commissions means nothing. The rigidity of the categorical approach does not fit the Framers' pragmatic proclivities. Nor does it harmonize with the deference accorded to states under the international law principle of complementarity. A membership conception would navigate between the license sanctioned by the US common law of war position and the categorical approach's rigidity. It would allow courts to tailor the material support provisions in military commission legislation. Tailoring would permit only charges that alleged conduct functionally analogous to acts previously charged in military commissions, such as direct participation in violence against civilians or perfidious attacks, or performance of a substantial role in an organization that coordinated such efforts. Tailoring would permit charging conspiracy as a mode of liability for completed acts of violence, but not as a separate offense involving mere agreement. In this fashion, tailoring would grant Congress a measure of deference without giving it a blank check. Neither the government nor its categorical opponents will get everything they want from the functional approach to material support charges. Hamdan's conviction for generic service as a foot soldier will fall. However, the functional approach would uphold al Bahlul's conviction for his after-thefact distribution of the 9/11 attackers' martyr's wills and his role as bin Laden's personal propagandist. A split decision empowers Congress to regulate unlawful violence while blunting the shortterm impulses that the Framers feared. This careful balance keeps faith with the contending values that the Framers built into the Define and Punish Clause. INTRODUCTION.................................. 2 I. THE MEMBERSHIP CONCEPTION AND THE ENLIGHTENMENT'S PSYCHOLOGY OF LAW...........11 II. THE FRAMERS ON MEMBERSHIP .................... 16 A. Impulses , Institutions, and the Constitution's Treatment of the Law of Nations............... 17 B. Foreign Factions , Codification's Challenges, and Deference to Congress's Judgments on the Law of Nations............................. 24 III. THE DEFINE AND PUNISH CLAUSE FROM THE FOUNDING ERA TO THE PRESENT .............. 28 A. The Founding Era: Contention and Consensus........28 B. Military Commissions and the Define and Punish Clause Since the Founding Era........ .................. 32 1.Jackson's Florida Campaign and Military Commissions ........................... 32 2. The Civil War and Military Commissions ............. 38 3. Defining and Punishing Piracy and Counterfeiting under Federal Criminal Law ......... 45 4. World War II: Espionage, Sabotage, and the QuininCase ...................... 47 5 . Nuremberg and Membership Offenses ... ...... 52 6 . After September 11: Salim Hamdan and Conspiracy ...................... 53 7 . Summary.............................. 56 IV. INVITATION TO A PROBLEM: MATERIAL SUPPORT LAWS AND MILITARY COMMISSIONS ..... ....... 57 A. Material Support and Federal Criminal Law............. 57 B. Material Support Moves to Military Commissions......... 59 1. The Court of Military Commission Review Decisions............ ................. 61 2. The Constitution, the Law of Nations, and the US Common Law of War.................. 63 3. The Categorical View of Military Commission Jurisdiction ...................... 66 V. THE MEMBERSHIP CONCEPTION AND MATERIAL SUPPORT .................................. 72 A. Deference and Complementarity ............... 72 B. Tailoring Material Support .............. ...... 77 C. Tailored Material Support and Aiding and Abetting Liability.................................78 D. Conspiracy After Hamdan II................... 84 CONCLUSION ................................... 89 3 . See Hamdan v. Rumsfeld , 548 U.S. 557 , 559 ( 2006 ). 4. See Hamdan v . United States (Hamdan Il) , 696 F. 3d 1238 (D.C. Cir . 2012 ), (reversing United States v . Hamdan (Hamdan 1) , 801 F. Supp . 2d 1247 ( Ct . Mil. Comm'n Rev . 2011 )) ; United States v . al Bahlul , 820 F. Supp . 2d 1141 ( Ct . Mil. Comm'n Rev . 2011 ). 5. U.S. CONST. art. I, § 8 , cl. 11 - 14 ( governing initiation of hostilities and the regulation of the armed forces) . 6. See Brief for Respondent at 25, HamdanII, 696 F.3d 1238 (No. 11 -1257 ) (D.C. Cir . Jan. 17 , 2012 ) [hereinafter Hamdan Brief for the United States] , available at http://www.lawfareblog.com/wp-content/uploads/2012/01/ Hamdan-Brief-for- US- As- Filed.pdf. 7. See 18 U.S.C. § 2339A ( 2012 ). 8. See Holder v . Humanitarian Law Project , 130 S. Ct . 2705 , 2713 ( 2010 ). 13. Who Privileged From Arrest, 1 Op . Att'y Gen. 26 , 27 ( 1792 ). 14. See David Glazier, PrecedentsLost: The Neglected History of the Military Commission, 46 VA. J. INT'L L . 5 , 27 - 31 ( 2005 ) (discussing the legal impact of Jackson's decisions); J. Andrew Kent , A Textual and HistoricalCase Against a Global Constitution , 95 GEO. L.J. 463 , 532 - 33 ( 2007 ) [hereinafter Kent, GlobalConstitution] (analyzing the incident); see Military Tribunals during the First Seminole War, 28 J. EARLY REPUBLIC 559 ( 2008 ) (interpreting debate in Congress and in popular press). 15 . See Rosen, supra note 14, at 590-95 . 16 . See HamdanI , 696 F.3d 1238 , 1249 -52 (D.C. Cir . 2012 ); Kevin Jon Heller , Why 7, 2008 , 8 :19 AM), http://opiniojuris.org/ 2008 /08/07/why-hamdans -material-support- convictions-violate-the-ex-post-facto-lause. 21 . SeeTHE FEDERALIST No. 78 , supra note 1, at 468 (Alexander Hamilton). 22 . See Robert M. Chesney , NationalSecurity Fact Deference, 95 VA. L. REV. 1361 , 1415- 16 ( 2009 ) (discussing psychological influences promoting groupthink); cf JACK GOLDSMITH, POWER AND CONSTRAINT: THE ACCOUNTABLE PRESIDENCY AFTER 9/11 132 ( 2012 ) (praising checks on decision making provided by military lawyers consulting on targeting decisions) . 23. See THE FEDERALIST No. 78, supranote 1, at 468 (Alexander Hamilton) . 24 . See THE FEDERALIST No. 37 , supranote 1,at 224 (James Madison). 25. Id. at 225 . 26. See DavidJ. Barron & Martin S.Lederman , The Commander in Chiefat the Lowest Ebb-Framingthe Problem , Doctrine,and OriginalUnderstanding, 121 HARV. L. REv. 689 , 734 ( 2008 ) (observing that "Congress's power to 'define and punish . .. Offences conduct violates international law") . 27 . SeeTHE FEDERALIST NO. 10 , supranote 1, at 76 (James Madison). 28 . See RobertJ. Reinstein , Executive Powerand the Law of Nations in the Washington Administration ,46 U. RICH. L. REv . 373 , 397 - 98 ( 2012 ). 29 . See THE FEDERALIST No. 62 , supranote 1, at 379 (James Madison). 30 . See United States v. Arjona , 120 U.S. 479 , 484 - 85 ( 1887 ). 31 . See William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Internationaljustice , 49 HARV. INT'L L.J . 53 , 67 - 68 ( 2008 ). 32. SeeS .C. Res . 1373 , 1 1 ( d ), U.N. Doc . S/RES/1873 (Sept. 28 , 2001 ). 33 . See Hamdan v. Rumsfeld , 548 U.S. 557 , 558 - 662 ( 2006 ). 43 . See id. at 75; see also id. at 80 (citing Montesquieu, who observed that "the mutually dependent") . 44. SeeVATTEL, supranote 11, 1 137. 45. Id. 46. Id. 47. Id. 1 151 ; cf Michael N. Schmitt, MilitaryNecessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance , 50 VA. J. INT'L L . 795 ( 2010 ) (discussing history of balancing two values). 48 . VATTEL, supranote 11 , 1 151 . 49. See HIRSCHMAN , supra note 36, at 54 ( citing DAVID HUME , A TREATISE ON HUMAN NATURE (T.H. Green & T.H. Grose eds., 1878 )). 50 . VATTEL, supranote 11 , 140 . 51. See id. 1151 . 62. PUFENDORF, supra note 35, at 85 . 63. VATTEL, supranote 11 , 1 137 . 64. Id . 138 . 65. See id. It 136-59 . 66 . See Anthony J. Bellia , Jr. & Bradford R. Clark , The Federal Common Law of Nations , 109 COLUM. L. REV. 1 , 15 - 16 ( 2009 ) (noting the Framers' debt to Vattel); see alsoTHE FEDERALIST No. 16, supranote 1 , at 109 (Alexander Hamilton) (arguing that affront") . 67 . See Letter of Edmund Randolph (Oct. 10 , 1787 ), in 1 THE DEBATES INTHE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 482, 483 (Jonathan Elliot ed., 2d ed. 1836 ) (noting that "law of nations is unprovided with sanctions in many cases," resulting in "wretched impotency" in deterring violations). 358. I am indebted to Ashley Deeks for this example . 359. See Rome Statute of the International Criminal Court pmbl. 1 10 , art. I, July 17, 1998 , 2187 U.N.T.S. 90 [hereinafter Rome Statute] (noting that ICC was established as "complementary to national criminal jurisdictions" ). 360 . See Tara Melish, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies , 34 YALE J. INT'L L . 389 , 439 ( 2009 ) (noting that "local needs are best appreciated by local actors" ). 361 . See MARK A. DRUMBL, ATROCITY , PUNISHMENT , AND INTERNATIONAL LAw 148 ( 2007 ) (praising internal restorative justice mechanisms that promote a "forgiveness International Criminal Court and justice on the Ground , 43 ARIZ. ST. L.J. 427 , 436 - 37 ( 2011 ) (noting importance of enhancing internal capacities ). 362 . See Burke-White, supranote 31 , at 67- 68 . 363 . See Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali , Case No. ICC-01/09-02/11 OAJudgment on Defence Appeal 389 . Prosecutor v. Krstic, Case No. IT-98-33-A , judgment, 11 135 - 39 , 144 ( Int'l Crim . Trib. for the Former Yugoslavia , Appeals Chamber, Apr. 19 , 2004 ). 390 . Prosecutor v. Taylor, Case No. SCSLA)M) 1 -T, Judgment, 6910 - 12 (Special Court for Sierra Leone , May 18 , 2012 ). 391 . Id . 1482 ( defining "aiding and abetting" ). 392. See supra notes 302-08 and accompanying text (discussing facts in Hamdan's case) . 393. See THE FEDERALIST No. 37, supranote 1, at 228 (James Madison) . 394 . Id . 395 . Who Privileged from Arrest, supranote 13 , at 28- 29 . 396 . Additional Protocol I , supra note 353, art. 43 , 13; see also Alexander, supra note 310, at 1144 ( criticizing unprivileged belligerency charges); Baxter, supra note 252; David J.R. Frakt , Direct Participationin Hostilities as a War Crime: America's Failed Efforts to Change the Law of War, 46 VAL . U. L. REV. 729 , 732 - 34 ( 2012 ), available at http://ssrn.com/abstract=2103906; cf Newton, supranote 354 (critiquing provision); Proposals for Reform Hearing, supra note 294 (testimony of David J .R. Frakt, Lead unprivileged belligerency) . 397 . See BENJAMIN WrrrES, DETENTION AND DENIAL: THE CASE FOR CANDOR (2011); Robert M. Chesney , Who May Be Killed? Anwar al-Awlaki as a Case Study in the 403 . See HamdanII , 696 F.3d 1238 , (D.C. Cir . 2012 ). 404 . See ILC Draft Code , supra note 374. 405. See London Agreement of 8 August 1945 , Charter of the International Military Tribunal , and the Nuremberg Tribunal's Rules of Procedure, reprinted in 2 CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA 675-91 ( 1995 ); Jens David Ohlin, joint Intentions to Commit International Crimes, 11 CHI. J. INT'L L . 693 , 702 ( 2011 ) [hereinafter Ohlin, joint Intentions]. 406 . See Statute of the International Criminal Tribunal for the Former Yugoslavia art. 4 ( 3 ) (b), S.C. Res . 827, U.N. Doc . S/RES/827 (May 25, 1993 ).


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Margulies, Peter. Defining, Punishing, and Membership in the Community of Nations- Material Support and Conspiracy Charges in Military Commissions, Fordham International Law Journal, 2017,