Ohlin & Farley on Military Commission "Hostilities"

Prof. Brenner M. Fissell
Hofstra Law School

An online conversation has sprung up around a recent ruling by the former 9/11 trial judge; the judge reaffirmed a prior ruling that the existence of “hostilities” for military commission jurisdictional purposes was a nonjusticiable political question. Benjamin Farley, defense counsel for one of the 9/11 defendants (Ammar al-Baluchi), criticized this decision as erroneous, citing past cases in which courts (mostly international) have addressed this question. Prof. Jens David Ohlin just yesterday put out a response, again criticizing the illogic of the jurisdictional ruling, but also arguing that pre-9/11 acts would be punishable by military commission if the acts were linked by inchoate liability to 9/11 itself.

Prof. Ohlin’s post brought out a point of precision in the issue that triggered, in my mind, an additional criticism of the jurisdictional ruling. As Prof. Ohlin points out, the existence of hostilities is both a jurisdictional fact as well as an offense-element. Consider the text of one offense Mr. Farley’s client is charged with, Attacking Civilians, 10 U.S.C. §950t(2): “Any person subject to this chapter who intentionally engages in an attack upon a civilian population as such, or individual civilians not taking active part in hostilities, shall be punished….” Persons subject to the chapter, of course, are those who, among other things, “engaged in hostilities against the United States….” 10 U.S.C. §948a(7)(A). Prof. Ohlin points out the problems of treating jurisdiction as a political question, but one might think of even greater problems when reaching the offense-element inquiry. Offense-elements, after all, have constitutional status, in that the Due Process Clause (assuming it applied) requires that the prosecution prove them beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361 (1970).

But if the existence of hostilities is a nonjusticiable political question for jurisdictional purposes, how can it be something else for offense-element purposes, and how can something nonjusticiable be “proven?” I suppose that depends on the reasons for the nonjusticiability. The Supreme Court listed five categories of political questions in Baker v. Carr, 369 U.S. 186, 217 (1962), but the Commission’s prior ruling appears to select only one basis: “[A] textually demonstrable constitutional commitment of the issue to a coordinate political department….” Id.; AE502FFFF at 4 n.17 (citing textual commitment of “foreign policy and the conduct of war” to political branches). If this textual commitment prevents judges from answering the question during the jurisdictional inquiry, then why should it not similarly prevent court members from answering it at the liability phase?