|Prof. Stephen I. Vladeck|
Washington College of Law
One response to these analyses may just be begrudging acceptance--that the military exception just doesn't make sense as a unitary concept, and never will. But before giving in to such a nihilistic view of American constitutional law, this last post presents the paper's prescriptive thesis, i.e., that there is one possible way to tie the disparate threads of the military exception together that would solve many--if not most--of the puzzles and problems that my previous posts have identified. In particular, the paper suggests that the military exception might be categorically re-conceptualized as an exception grounded in prevailing norms of foreign and international practice. I unpack this argument (and respond to some of its critiques) below the fold.
I. Uniting Law-of-War Commissions, Occupation Courts, and Martial Law
Before trying to tie the entire military exception together, it might help to start small--with the Supreme Court's 1952 decision in Madsen v. Kinsella, about which I wrote briefly in Part III on Monday. There, in upholding the jurisdiction of a U.S. military tribunal in occupied Germany to try a civilian dependent for the murder of her husband under German law, Justice Burton found statutory authority in the very same provision upon which the Court had relied in Ex parte Quirin—even though the earlier case involved a law-of-war commission. In his words, the “law of war” the violations of which could be tried in a military commission pursuant to Article 15 of the Articles of War “includes at least that part of the law of nations which defines the powers and duties of belligerent powers occupying enemy territory pending the establishment of civil government.” Indeed, Burton continued, “The jurisdiction exercised by our military commissions in the examples previously mentioned extended to nonmilitary crimes, such as murder and other crimes of violence, which the United States as the occupying power felt it necessary to suppress.”
Madsen thereby suggested that the underlying principle uniting occupation courts and law-of-war commissions is international law; the justification for both departures from Article III is the practice and precedents not of other nations in their own civilian forums, but of the international community in its enunciation and enforcement of supervening norms of accountability. And Quirin itself justified its articulation of a previously unrecognized exception to the jury-trial provisions by looking to the state of international law at the time of the Founding, including an 1806 Act of Congress (itself derived from a 1776 Resolution of the Continental Congress) authorizing capital punishment for alien spies “according to the law and usage of nations, by sentence of a general court martial.” As Chief Justice Stone explained, “Under the original statute authorizing trial of alien spies by military tribunals, the offenders were outside the constitutional guaranty of trial by jury . . . because they had violated the law of war by committing offenses constitutionally triable by military tribunal.”
Thus, at least in the context of occupation courts and law-of-war commissions, the unifying theme appears to be the amenability of such offenses to military trial under international law as a general proposition, as opposed to the offenses' specific status as war crimes. After all, Quirin cast the jury-trial exception that justified trial by military commission as encompassing “offenses committed by enemy belligerents against the law of war.” But Madsen was not an enemy belligerent and did not commit a war crime. Perhaps what Quirin meant—and should have said—is that the Constitution exempts from the jury-trial provisions “offenses triable by military tribunal under international law.” In Quirin, that would have been a distinction without a difference; in Madsen, it was anything but.
Among other things, such a reconceptualization of the Quirin exception also resolves one of Quirin’s most troubling analytical puzzles: its recognition of the historical use of military commissions to try spying and aiding the enemy, even though neither is recognized as a war crime under international law—whether today or at the time Quirin was decided. As Judge Kavanaugh pointed out in Hamdan II, theories of Article III that view the Quirin exception as exclusive therefore struggle to explain how such non-war crimes can also be tried by military tribunal. But while many (including me in prior writings) have simply dismissed the jurisdiction of military courts to try spying and aiding the enemy as an “enigmatic statutory precedent,” perhaps the better explanation is that spying and aiding the enemy are rare examples of non-war crimes that have nevertheless been subject historically to military jurisdiction under international law—and therefore fit quite comfortably within such a reconceived military exception to Article III.
Thus, a view of the military exception grounded in international law would, if nothing else, introduce a degree of coherence and analytical stability to the permissible scope of military commission jurisdiction. In the process, such an approach would drive home the stakes of the current litigation over whether the commissions can retroactively try non-international war crimes—since the answer may be the same prospectively, as well.
II. International Law and U.S. Courts-Martial?
Inasmuch as an international law-based theory would tidily reconcile Quirin, Madsen, and spying, the far harder question is whether it would also make sense to apply it to the other major strand of the military exception, i.e., courts-martial. After all, courts-martial and military commissions have historically been understood as entirely distinct—if not hermetically sealed—entities, with different legal and philosophical justifications. And unlike commissions, courts-martial have seldom been understood by reference to international law—if for no other reason than because there is no such thing as the international law of military jurisdiction.
And yet, although it may initially seem as if such an international law-based reorientation of the military exception cannot be reconciled with the historical evolution of court-martial jurisdiction, recall Justice Wayne’s view in Dynes v. Hoover—that
Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and . . . the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States . . . .Justice Wayne did not elaborate, and his allusion to the law of nations has been all-but lost to subsequent jurisprudence, but the argument could easily be analogized to the revised understanding of Quirin outlined above: The military exception does not derive from the Constitution’s text; it derives from international law, as reflected in several scattershot textual clues. And in the court-martial context, at least, because international law has historically recognized the power of sovereigns to subject their own soldiers to military jurisdiction at least for military offenses, and because the Supreme Court had never endorsed courts-martial of civilians, there would never have been any reason to ask, at least prior to the Supreme Court's decision abolishing a "service-connection" requirement for servicemembers in Solorio, whether international law could do any work in this field that was not already accomplished by the text of the Make Rules and Grand Jury Indictment Clauses, at least as interpreted by successive generations of Justices.
If so, then perhaps Quirin—“not a happy precedent” by any means—had the right idea, but the wrong formulation: One coherent, cross-cutting explanation for the scope of the military exception, which would tie together the exception’s seemingly disparate strands and resolve most of its puzzles, would be an exception from Article III for all cases properly subject to military jurisdiction under clearly established norms of international law. That is to say, such norms at once provide the constitutional justification for—and outer limits on—the departure from the Article III paradigm.
III. An International Law Exception to Article III?
Looking to international law to interpret the Constitution is often a fraught proposition. But in one sense, an Article III exception grounded in international law is not as novel an idea as it may seem. As Professor Henry Monaghan documented in an influential 2007 Columbia Law Review article, there are already any number of respects in which international tribunals may themselves be said to exercise “the judicial power of the United States,” and yet not offend the strictures of Article III, especially insofar as the conduct of U.S. government actors is still subject to Article III oversight. Although Professor Monaghan rested much of his argument on an analogy to the public rights doctrine, it is in many ways a different variation on the same theme—that supranational legal arrangements can justify departures from the Constitution’s national norms.
An obvious analogy in that regard is Congress’s power to implement duly enacted treaties under the Necessary and Proper Clause of Article I. Per Justice Holmes’ opinion in Missouri v. Holland, Congress may enact statutes to implement the United States’ treaty obligations even if no enumerated power would have authorized the same legislation in the absence of the treaty. In other words, international law—in Missouri, as reflected in bilateral treaties—provides an independent source of federal regulatory power that would otherwise exceed the limits imposed by the Constitution—including the Tenth Amendment. Of course, exactly how far Congress may go in implementing a treaty is the question currently before the Supreme Court in the Bond case. But whatever the Court ends up holding in Bond, the underlying principle—that international law may in some cases support exercises of federal authority lacking a more specific hook in the text of the Constitution—is almost certain to survive. In the context of military courts, an exception grounded in international law would play a comparable role by both authorizing and circumscribing military-specific departures from Article III.
To be sure, an exception to Article III grounded in international law might be criticized as being too amorphous and ephemeral to actually serve as a meaningful constraint. But such objections are arguably belied by both the crystallization of at least some aspects of international criminal law and the constraints current litigation arising out of the Guantánamo military commissions have imposed upon the use of customary international law. With regard to crystallization, it is a familiar refrain that the creation of ad hoc (and now permanent) international criminal tribunals has helped to generate a greater volume of positive law concerning the scope of international humanitarian law. Even though decisions by the Rwandan and Yugoslavian war crimes tribunals and the International Criminal Court don’t bind other courts, they are certainly relevant—if not persuasive—authority on the scope of legal principles previously left to the vagaries of customary international law, alongside an ever-growing body of treaty-based legal rules to govern armed conflict situations.
And even where the relevant norms of international practice can only be divined from customary international law (as opposed to interpretations of international treaties), the very cases that have helped to provoke this discussion have also demonstrated the ability of U.S. courts properly to assess and apply such loosely defined norms. Indeed, the central question that has arisen under the Hamdan II panel’s construction of the 2006 MCA is whether “conspiracy” and “material support to terrorism” are defined with enough specificity in customary international law such that defendants could have been on notice prior to the MCA’s enactment that conduct amounting to those offenses rendered them subject to trial by military commission. In other words, courts are already asking whether specific offenses and offenders are triable by military tribunals even under customary international law, albeit to answer a putatively different question than the one that would arise under this framework.
In Hamdan II, at least, the D.C. Circuit not only looked to international law, but suggested the appropriate standard of review (relying on the standard articulated by the Supreme Court in Sosa v. Alvarez-Machain for identifying norms of international human rights law that could be enforced via the Alien Tort Claims Act). As Judge Kavanaugh wrote for the unanimous three-judge panel,
the imprecision of customary international law calls for significant caution by U.S. courts before permitting civil or criminal liability premised on violation of such a vague prohibition. . . . Therefore, . . . imposing liability on the basis of a violation of “international law” or the “law of nations” or the “law of war” generally must be based on norms firmly grounded in international law.If norms must be "firmly grounded" in international law before they can provide the basis for liability before a military tribunal, it seems only natural to require that norms be similarly grounded in international law before they can provide the basis for the jurisdiction of a military tribunal. And as Hamdan II illustrates, so construed, international law can therefore serve as both a powerful source of and constraint upon the scope of military jurisdiction—whether retrospectively or prospectively. In Hamdan II, such a result followed as a matter of statutory interpretation. But even if the inquiry were instead grounded in constitutional considerations, the ability of courts to assess whether such norms exist—and are sufficiently well-established—should be no different.
IV. The Emerging International Law of Military Jurisdiction
It remains, then, to assess whether international law actually provides useful illumination of the permissible scope of military jurisdiction through clear examples of authorizations or constraints upon military trials. Obviously, even if it was possible, a full accounting of the international law of military jurisdiction is beyond the ambit of my paper. It must also be said that many will fail to be persuaded that such a body of international law could ever provide sufficiently coherent principles to circumscribe Article III. At the same time, although there is no body of international treaty law generally dealing with military jurisdiction, there are two critical (and specific) authorizations for military jurisdiction in the 1949 Geneva Conventions: Article 84 of the Third Geneva Convention contemplates military trials for enemy belligerents, so long as such trials take place in the same courts in which the detaining power’s soldiers are tried; and Article 66 of the Fourth Geneva Convention specifically authorizes “non-political” military courts to try civilian offenses in areas under lawful military occupation, as in Madsen.
Militating in the opposite direction, albeit no less salient, is the dramatic uptick in recent years in judicial application of more general principles of international human rights law—as embodied in both positive-law treaties and customary-law norms—to produce results specific to military jurisdiction. Thus, for example, the Inter-American Court of Human Rights has issued a series of decisions interpreting the fair trial protections of the American Convention on Human Rights to bar military trials of military personnel for non-military offenses, and to otherwise constrain the permissible scope of domestic military jurisdiction. These rulings, as one scholar has written, “may be the inter-American system’s most significant contribution to the evolution of the rule of law in the Americas.”
The same pattern has played out under the fair trial provision (Article 6) of the European Convention on Human Rights, which the European Court of Human Rights has interpreted to foreclose military jurisdiction over civilians except “when the proceedings are objectively fair, when there are compelling reasons for the assertion of such jurisdiction, and when there is a clear and foreseeable legal basis.” Based on that test, the European Court has, among other things, invalidated the United Kingdom’s assertion of military jurisdiction over a civilian because the military court wasn’t sufficiently independent, and may in any event have lacked any kind of compelling justification.
These more specific anecdotes are emblematic of a far larger trend—one in which even those countries with long-established and generally fair military justice systems have had to scale back some of their more marginal exercises of military authority in order to square domestic practice with international human rights law. There continue to be examples to the contrary, of course, but it would hardly behoove the government to argue that an international norm of military jurisdiction is clearly established by domestic practice in countries such as Brunei, North Korea, or Somalia.
Supplementing these specific decisions are the more general assessments undertaken by the United Nations in recent years. For example, the U.N. Commission on Human Rights in 2006 promulgated “Draft Principles Governing the Administration of Justice Through Military Tribunals,” known as the “Decaux Principles” after Emmanuel Decaux, the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights. And in August 2013, the U.N. Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, produced her own report summarizing the administration of justice through military tribunals in a wide range of jurisdictions, and offering a series of conclusions largely in line with the Decaux Principles.
In introducing the Decaux Principles, the Commission described them as “a minimum system of universally applicable rules, leaving scope for stricter standards to be defined under domestic law.” To that end, Principle No. 5 discourages military jurisdiction over civilians, except in cases of occupation or martial law in which no other forum is available. Principle No. 8 provides that “The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel. Military courts may try persons treated as military personnel for infractions strictly related to their military status.” Principle No. 9 articulates a preference for civilian, rather than military, trials in all cases alleging serious human rights violations. Principle No. 17 underscores the importance of having plenary appellate review of military convictions in civilian courts. And Principle No. 19 reflects the “international trend towards the gradual abolition of the death penalty” by discouraging its use—and prohibiting it for offenses committed by (1) individuals under the age of 18; (2) pregnant women or mothers of young children; or (3) persons suffering from any mental or intellectual disabilities.
Of course, one could certainly object that the Decaux Principles are an aspirational set of forward-looking ideals, rather than a comprehensive summary of existing international law norms—or that, much as a drunk might use a lamppost, they provide support, rather than illumination. But even a modest perusal of more concrete foreign practice provides at least some support for these conclusions. As noted above, an ever-increasing number of domestic and international courts are relying upon fair-trial protections in human rights treaties to create comparable constraints upon military jurisdiction—to limit servicemember liability to military offenses, and civilian liability to cases of overriding necessity. Even if the United States is not a party to these human rights treaties, such emerging jurisprudence certainly appears to bespeak a growing international consensus against the exercise of military jurisdiction in such contexts.
But even if the Decaux Principles are, at best, a species of soft law, they would at least provide specific data points, which the government would presumably have to rebut in order to justify assertions of military jurisdiction inconsistent therewith. And so long as the justification for departing from Article III is the existence of a clearly established foreign or international practice of subjecting such offenders and offenses to military jurisdiction, then the assertion of military jurisdiction in such cases would not violate Article III.
Thus, the point is not that the Decaux Principles would instantly transmogrify into constitutional constraints; far more modestly, they would merely underscore the difficulty the government might encounter in identifying countervailing examples that would support previously unsanctioned exercises of military jurisdiction. Per the Knaul Report, the burden of justifying the assertion of military jurisdiction “rests with the State.” And if Judge Kavanaugh’s reasoning from Hamdan II is adopted, “imposing liability on the basis of a violation of ‘international law’ or the ‘law of nations’ or the ‘law of war’ generally must be based on norms firmly grounded in international law.’”
If the government could not provide such evidence to rebut the Decaux Principles, then this thesis would yield three significant effects for U.S. military jurisdiction: First, it would compel the conclusion that Solorio was wrongly decided—and that the Constitution only permits a departure from Article III for military offenses, at least when the civilian courts are otherwise available to try civilian offenses. Second, it would also likely require the invalidation (or, at least, dramatic narrowing) of the Graham Amendment, at least insofar as it authorizes the military trial of civilian contractors (even those who are serving with or accompanying the armed forces in the field) during "contingency operations." Third, it would likely prevent the government from asserting military jurisdiction over offenses framed as purely “domestic” war crimes, even prospectively. Fourth, touching on one of Gene Fidell's particular bugaboos, it would also require the broadening of the Supreme Court’s appellate jurisdiction vis-à-vis CAAF to encompass all cases over which CAAF may exercise jurisdiction, whether or not it chose to do so.
In other words, other than the necessary (and long-sought) filling out of the Supreme Court’s appellate jurisdiction over courts-martial, a reconstruction of the military exception to Article III grounded in international law would at first blush largely return U.S. law in the field to the pre-Solorio status quo, albeit with a far more satisfying theoretical and analytical explanation for how we got there—and why it will be exceedingly difficult for Congress to expand military jurisdiction any further absent dramatic shifts in foreign and international practice. Difficult questions would undoubtedly continue to arise at the margins, but at least the margins would be drawn.
V. Concluding Thoughts
I am certain that this thesis won't sit well with many. After all, an exception to constitutional norms grounded in international law can be assailed from all directions as, at once, open to manipulation and cherry-picking by folks on either side of any argument, and, as such, insufficiently determinative to be the basis for meaningful judicial enforcement. Even those less skeptical of this thesis will surely still find discomfiting the ephemeral nature of an international-law grounded exception, if for no other reason than because, inasmuch as it will shift over time, it leaves control over the terms of the shift in the hands of other countries' approaches to military justice.
At the same time, CAAF’s July 2012 decision in Ali and the D.C. Circuit’s pending en banc decision in al Bahlul provide a ripe opportunity for reassessing the scope of the military exception—not just because these cases sit right on the margins of that exception, but because the difficulties courts have confronted in these cases at once underscore and derive from the incoherence pervading non-Article III doctrine more generally. And as Chief Justice Roberts eloquently explained in Stern v. Marshall (the Court's last foray into the world of non-Article III courts),
Although “[i]t may be that it is the obnoxious thing in its mildest and least repulsive form,” we cannot overlook the intrusion: “illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” We 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.From both a doctrinal and theoretical perspective, then, the Ali and al Bahlul cases provide an especially propitious opportunity for revisiting the underpinnings of the military exception to Article III—and for considering whether the military exception can—and should—be placed on firmer analytical footing. For a number of reasons, international law is not a perfect solution to the problems I've identified, but it seems worth considering whether, the problems it would raise notwithstanding, it would provide a far more stable, defensible, and tidy explanation for why the Constitution tolerates such a radical departure from its text in the context of military justice.
P.S. As I wrote in my opening post, I'd very much welcome any and all feedback--whether on the paper itself or on these posts--either in the comment threads or via e-mail.