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Published by The Lawfare Institute
I must confess that I don't fully understand Peter Margulies' response to my post from earlier today. My post argued that the bottom-side briefing in the D.C. Circuit in al Bahlul offers a relatively weak (and, in my view, already debunked) explanation for why Congess can allow allow military commissions to try enemy belligerents for wholly domestic offenses without violating Article III--i.e., that such a conclusion follows from the Supreme Court's 1942 decision in Ex parte Quirin. Peter's response, so far as I understand it, argues that Article III is irrelevant to military commissions, because, as Quirin recognized, the Founders understood that there would be some military courts that would exist wholly outside and apart from Article III--and these (in Peter's view) are clearly they. Thus, Peter writes, my view of Article III "would compromise Congress’s war powers, while offering little additional protection to the jury trial and grand jury rights that [I] rightly revere." Below the fold, I explain not only why Peter's arguments are utterly unpersuasive, but also how they only further illuminate the smoke-and-mirrors quality of the bottomside arguments my earlier post sought to critique. I. Misstating My Position Let's start with the most frustrating feature of Peter's response: It completely misstates my argument. Anyone who read my post, my academic writings on the subject, or any of the briefs I've filed on this issue, would understand that I completely agree that the Constitution countenances military commissions in at least some cases, entirely because the Founders did understand that military courts, within the proper exercise of their jurisdiction, would exist separate and apart from Article III. (Indeed, military courts were the only non-Article III federal courts the Founders expressly contemplated!) It's not just Quirin that makes this position clear; it's also Dynes v. Hoover (the Court's first real discussion of the constitutionality of court-martial jurisdiction), and almost every other major military justice case the Court has ever decided. There may well be some critics of the commissions who don't believe military jurisdiction over non-servicemembers can ever be appropriate unless the civil courts are closed (per Ex parte Milligan), but I'm just not one of them. Peter is therefore knocking down a straw man in implying that my view rejects this understanding of military jurisdiction. Nothing could be further from the truth. II. Hiding the Ball By misstating my views and focusing on the relationship between military courts (within the proper exercise of their jurisdiction) and Article III, Peter completely glosses over the true point of departure between us--whether the Founders would have understood such a departure from Article III for military courts to encompass trials of entirely domestic offenses by enemy belligerents, as opposed to trials of offenses recognized as punishable under international law. Like the government's brief, Peter offers precisely zero evidence that the Founders thought as much. Instead, Peter relies upon (and misreads) Chief Justice Stone's opinion in Quirin--and Quirin's treatment of two enigmatic offenses, spying and aiding the enemy--for the more general conclusion that Article III and the Constitution's jury-trial protections "permit commission jurisdiction over conduct by a belligerent during an armed conflict." Never mind Chief Justice Stone's specific holding in Quirin that the jury-trial provisions don't prohibit "the practice of trying, before military tribunals without a jury, offenses committed by enemy belligerents against the law of war." Never mind the fact that Quirin expressly (if incorrectly) concluded that the sabotage offense with which the defendants were charged was an international war crime. Never mind that such a holding was necessary for Quirin to conclude that Congress had even authorized the commission there at issue through Article 15 of the 1916 Articles of War. And never mind the separate explanations for why authority for trying spying and aiding the enemy doesn't provide any precedent for any other offenses. Instead, Peter writes that "Quirin noted that the Framers, who were familiar with military commissions because of General George Washington’s use of such tribunals in the Revolutionary War, viewed commissions as an 'important incident' of the power to authorize and wage war, rather than a forum under Article III’s ambit." Of course they did. That doesn't actually prove anything about the matter here in dispute. To be sure, Peter's response (unlike his amicus brief) asserts that "charges heard by law of war commissions must have some reasonable relationship to the belligerency itself." But he doesn't explain the constitutional source of this requirement, or why Article III would allow such domestic law offenses to be tried by a military commission, but not domestic law offenses lacking such a relationship. More importantly, even if Peter's might be a normatively attractive reading of Article III, my point is simply that it has no support in Founding-era sources, Quirin, or any other Supreme Court decision. To be sure, as I've written previously, none of these sources forbid such jurisdiction, and so Peter (like the government) is certainly free to argue for this view as a matter of first impression. But the key to al Bahlul is accepting that these are the stakes--and that Quirin simply did not--and does not--settle the matter. III. Moving the Goalposts Perhaps because there is so little precedent to support his arbitrary position on what Article III does and doesn't allow, Peter instead focuses the heart of his response on attacking my international law-focused position, arguing that it (1) would produce "anomalous results," (2) would "undermine Congress's exercise of its war powers," and (3) isn't necessary to protect Article III and the Constitution's jury-trial protections. All of these claims are hogwash, as I explain in turn below. a. Anomalous Results Peter's "anomalous results" argument is that "Under [my] view, the former bin Laden aide al Bahlul, who has no U.S. ties, would gain greater protection under Article III than would a citizen of Missouri who aided the Confederacy during the Civil War." Although he doesn't elaborate, what I assume Peter is getting at is that the Missouri citizen could have been tried by a military commission, whereas al Bahlul, in my view, cannot be (at least for non-international war crimes). But this result has nothing to do with al Bahlul's U.S. ties (or lack thereof); it's because Missouri was under martial law for most of the Civil War, and so the military courts were the only tribunals exercising any form of legal authority over anyone and everyone subject to their territorial jurisdiction. Peter may think it's anomalous that Article III allows different kinds of military courts to exercise different species of jurisdiction in different classes cases, but (1) I don't; and (2) Peter doesn't actually either; even under Peter's theory of Article III, enemy belligerents will have "greater protection" under Article III than individuals living in areas under martial law since they can't be tried by military commissions for offenses not reasonably related to the underlying armed conflict. Is that anomalous, too? b. Undermining the War Powers Peter also claims that "[t]his anomaly would also undermine Congress’s exercise of its war powers. Martial law and occupation commissions have a limited geographic scope. Restricting commission jurisdiction outside these narrow contexts would reduce accountability for global terrorists." But there are plenty of existing accountability mechanisms for "global terrorists" (whatever that term means), including the panoply of federal criminal statutes that are routinely used in our ordinary civilian courts to prosecute terrorism suspects. Is there any reason to think that those trials, which have brought with them a remarkable success rate for the government, along with consistently--if not excessively--harsh sentences (both of which are noticeably absent from the military commissions) are insufficient to provide this accountability? Peter offers none. c. Unnecessary for Article III and the Jury-Trial Protections Finally, Peter concludes that my position just isn't necessary to protect Article III and the jury-trial rights, because "Article III’s prime role here is assuring that the government does not misuse military commissions by trying ordinary citizens outside the criminal justice system." Of course, that's not "Article III's prime role." Article III's prime role is to ensure access to an impartial, salary- and tenure-protected federal judge--and a jury of one's peers--in every criminal case to which it applies. To that end, the Supreme Court has been emphatic, time and again, that departures from Article III are to be construed narrowly--and has only embraced federal criminal trials in non-Article III courts in the territories, the court-martial system, areas under martial law/military occupation, and for international war crimes. And as Chief Justice Roberts wrote just three years ago in reasserting the significance of Article III, "[w]e cannot compromise the integrity of the system of separated powers and the role of the Judiciary in that system, even with respect to challenges that may seem innocuous at first blush." Simply put, observing Article III's limits is critical here lest the first step down the slippery slope prove to be the last. IV. The Merits of the Distinction Between International and Domestic War Crimes Finally, I'd be remiss in not saying a word in defense of the central distinction at the heart of my view of Article III--between Congress's power to subject international war crimes to trial by military commission, and its lack of power to subject domestic offenses to such trial absent martial law or military occupation. The reason why international war crimes are different is because they are supernational. The Nuremberg and Tokyo war crimes tribunals (to say nothing of the hundreds of other war crimes trials convened by the United States after World War II) were predicated on the notion that international law clearly allows the trial of a small class of especially heinous offenses by military, rather than civilian, courts. This is even reflected in provisions of both the Third and Fourth Geneva Conventions of 1949, which expressly contemplate military trials of certain detainees. And so I believe, unlike many of my friends in the progressive community, that Article III encompasses such proceedings, for the reasons articulated by Chief Justice Stone in Quirin. But insofar as the justification for the assertion of military jurisdiction in such cases is supernational, it not only collapses in the context of wholly domestic offenses, but it runs headlong into a series of countervailing considerations, all of which militate in favor of civilian, rather than military, trials. Thus, the Supreme Court has forsworn peacetime military trials of civilian employees of the military (and civilian dependents of servicemembers) even when those individuals are serving with or accompanying the armed forces in the field. The Court has also forbidden the military trial of former servicemembers for offenses committed while in uniform, so long as the defendant has fully separated from the military. And in all of these cases, the linchpin has been Article III and the Constitution's jury-trial protections. These rulings weren't expedient; many of them allowed murderers to go free since, unlike today, civilian courts couldn't hear the same charges against the same defendants. And they, too, could therefore be decried as anomalous, turning on distinctions that might strike some readers as arbitrary. But if Congress could subject wholly domestic offenses to trial by military commission simply by characterizing them as violations of the "domestic" law of war and relating them to an ongoing armed conflict, most of the constraints the Supreme Court has identified in these prior cases would become elusive, if not altogether illusory. As the Court explained 32 years ago, in each instance in which the Court has historically allowed for adjudication by non-Article III federal courts, it "has recognized certain exceptional powers bestowed upon Congress by the Constitution or by historical consensus. Only in the face of such an exceptional grant of power has the Court declined to hold the authority of Congress subject to the general prescriptions of Art. III." Simply put, the burden has to be on the government to justify an expansion in these precedents--and to identify such an exceptional grant of power in the text of the Constitution or historical consensus. As my post from earlier today explained, neither the government's brief nor that of its amici comes anywhere near carrying that burden. And Peter's reply only underscores the absence of compelling affirmative arguments for such a conclusion.
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
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