Defining, Punishing, and Membership in the Community of Nations- Material Support and Conspiracy Charges in Military Commissions
Fordham International Law Journal
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
* 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
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(
), 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
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
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
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
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 (
); 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
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 (
) (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
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 (
); see alsoKarl S. Chang,
Enemy Status and Militaty Detention in the War Against Al-Qaeda,47 TEX. INT'L LJ. 1,
) (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 (
) (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
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 (
) (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
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
) (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.
80. Id. at 400 n.*.
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
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
) [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 (
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
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
V. THE MEMBERSHIP CONCEPTION AND MATERIAL
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
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.
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 (
) (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 (
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 (
(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 (
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
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
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 (
) (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
) (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
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.
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
assists, directly and
372. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2594 (
(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 (
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
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
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
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
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
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 (
(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 (
); 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'
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
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
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
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
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
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.
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
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
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
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.
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 ).