JiC welcomes Jonathan Hafetz for this fascinating essay on the lessons the U.S. can and should learn from Nuremberg for its prosecution of alleged terrorists in Guantanamo Bay. Jonathan is Associate Professor of Law at Seton Hall University and is currently writing a book about the tension between justice and legality in international criminal law. He also co-authored an amicus curiae brief in Bahlul v. United States.

Omar Khadr appears before a military commission in 2010. Like Ali Hamza Al Bahul, Khadr was a detainee at Guantanamo Bay.

While the United States played an important role in laying the foundations for an international criminal justice system after World War Two, its record in recent years has left much to be desired. The U.S. has not only refused to join the International Criminal Court (ICC), but has also flouted principles of international justice by failing to hold accountable those responsible for the commission of torture and other grave human rights violations after 9/11. The U.S., moreover, has demonstrated considerable chutzpah by seeking to capitalize on concepts borrowed from international criminal justice where convenient.  One example is the continued effort to prosecute suspected terrorists in military commissions, where the U.S. has invoked the concept of war crimes to defend its creation of a specialized court system that limits the fair-trial rights of defendants.

The recent ruling by a federal appeals court invaliding the military conviction of Guantanamo detainee Ali Hamza Al Bahul could set the stage for another high stakes legal battle over the commissions.  As the Obama administration contemplates whether to appeal the ruling to the Supreme Court (or to the full D.C. Circuit), the President should consider closely the lessons of the prosecution of Nazi leaders at Nuremberg, widely regarded as the most important war crimes trial in history and one in which the United States played a leading role.

In overturning the defendant’s conviction in Bahlul v. United States, the D.C. Circuit ruled (2-1) that military commissions cannot exercise jurisdiction over offenses, such as inchoate conspiracy, that are not recognized as war crimes under international law.

The panel grounded this ruling in Article III of the U.S. Constitution, which requires that crimes be tried by juries and that defendants be afforded the protections outlined in the Bill of Rights.  The Supreme Court has recognized limited exceptions to this constitutional rule, including for military commissions.  In the World War II case, Ex parte Quirin, the Court permitted the military trial of Nazi saboteurs for violations of the law of war.  (The law-of-war violation the Court identified in Quirin was the saboteurs’ burying their German military uniforms and secretly entering the United States).

In Bahlul, the appeals court held that this law-of-war exception to Article III (federal court) criminal jurisdiction referred exclusively to violations of international law, thus rejecting the U.S. government’s argument that the exception also encompassed violations of a separate domestic common law of war. In other words, if the U.S. government is going to prosecute someone in a military commission for a war crime, it has to be for a war crime recognized by international law, and not some bastardized U.S. version. I have previously described some weaknesses in the U.S. legal theory here and here.

Inchoate crimes such as conspiracy are useful tools for counterterrorism officials.  Like material support for terrorism, which was invalidated on ex post facto grounds by a previous D.C. Circuit ruling, conspiracy allows prosecutors to expand the net of liability to capture suspects before a terrorist attack is committed, in some cases based on little more than guilty association.  In Bahlul, the defendant was convicted of conspiracy and material support (as well as solicitation) for producing propaganda videos for al Qaeda.

Those charges, however, remain available to federal prosecutors in terrorism cases. The Bahlul ruling asks only whether they should also be available in military commissions.

In her dissent, Judge Karen Henderson claimed the mantle of Nuremberg to defend military commissions.  She invoked Supreme Court Justice Robert Jackson, who served as the chief U.S. prosecutor at Nuremberg and pointed to the Nuremberg tribunal’s adaptation of international law to meet “the needs of a changing world.”

Judge Henderson is certainly correct that the International Military Tribunal (IMT) at Nuremberg demonstrated some flexibility in holding Nazi officials individually responsible for the commission of aggressive war and crimes against humanity, neither of which was clearly outlawed at the time. The Nuremberg judges overcame accusations of ex post facto punishment by appealing to higher principles of justice: Nazi leaders had to be held accountable because of the enormity of their crimes, which were obvious to the world.

But here’s the rub.  There is no corresponding need for military commissions to prosecute terrorism offenses. Federal courts have capably handled terrorism cases for decades and have gotten even better at it since 9/11. In fact, a federal court in New York was preparing to try alleged 9/11 mastermind Khalid Shaikh Mohammad and four co-conspirators before the Obama administration succumbed to political pressure and charged the defendants in a military commission. Nuremberg, in short, resorted to innovation to do justice, not avoid it.

U.S. Prosecutor Robert H. Jackson addresses the court at the Nuremberg Military Tribunal in 1945.

Another important difference is that Nuremberg emphasized fair trial rights from the outset. Jackson set the tone early on in a speech to the American Society of International Law:

You must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty… the world yields no respect to courts that are merely organized to convict.

The Guantanamo commissions, by contrast, were originally organized for the very purpose of convicting all of their defendants. Before they were first struck down by the Supreme Court in Hamdan v. Rumsfeld, commissions allowed for the use of evidence obtained by torture and were pervaded by politicized decisions about whom to charge and command influence from superior officers to produce convictions.  To take one example, in 2006 the Deputy Defense Secretary instructed the former Chief Prosecutor about the “strategic political value” of charging some prisoners before the upcoming midterm elections.  While Obama has made various improvements to the reconstituted commissions, the system is still plagued by flaws, including persistent interference with defense counsel and excessive secrecy.  
In military commissions, moreover, a defendant can still lose even when he wins, as the U.S. claims that it can continue holding defendants who are acquitted until the end of the war on terror, a highly indeterminate period given the nature of a conflict waged against a shifting group of nonstate actors. Yes, World War Two was over when the Nazi leaders stood in the dock at Nuremberg. But it is hard to imagine that Jackson and his fellow prosecutors (or the Nuremberg judges, for that matter) would have entertained a trial system in which an acquittal did not mean release.

Although conspiracy was charged at Nuremberg, it proved controversial.  Conspiracy’s potential breadth, the IMT said, threatens the “well-settled legal principle that criminal guilt is personal.”  The tribunal thus narrowly interpreted conspiracy to require high-level, active participation in Nazi aggression. Subsequent international tribunals, including the International Criminal Court, have excluded conspiracy liability, except for genocide.

It is true, as Judge Henderson observes, that international criminal tribunals have endorsed theories of vicarious of liability that resemble conspiracy in some respects, particularly the variation of Joint Criminal Enterprise known as JCE III, a theory of collective liability under which one individual can be held responsible for the foreseeable actions of another. But two points stand out. First, even in its broadest form, JCE III is still distinct from stand-alone conspiracy because it is a mode of participation, not a crime in itself, and requires completion of an actual war crime. In other words, if a team of soldiers raids a home as part of a common plan and one of the soldiers commits a war crime (for example, by raping one of the inhabitants), the other members of the team can be held criminally responsible if they foresaw the possibility that the rape would occur. But the prosecution still must prove that a war crime (rape, in this example) was committed, whereas conspiracy liability can rest on a criminal agreement among the parties and does not require that the crime itself be perpetrated.   Second, since JCE III’s status is hotly debated, it seems like a theory of liability that a domestic war crimes tribunal would want to pause before emulating rather than embracing. Indeed, it is odd that Henderson cites a leading article on the subject—published by Allison Marston Danner and Jenny Martinez—that is critical of JCE III’s expansion and which considers it as a betrayal of Nuremberg.

Nuremberg had its flaws, including its exclusion of war crimes committed by the Allied Powers, prompting accusations of victor’s justice.  But Nuremberg’s crowning achievement was its aspiration to adhere to prevailing notions of due process when subjecting even the gravest crimes to a criminal trial.

Military commissions, on the other hand, aspire to erect a second-class court system to make it easier for the government to secure convictions. Ironically, because of their flaws, military commissions have not succeeded even in that dubious goal: of the eight convictions imposed by the commissions thus far, four have been invalidated.

Rather than double-down on commissions, Obama should use Bahul as a chance to defend the trial of offenses, however violent and reprehensible, in the U.S. civilian court system.  It is those courts, and not the jerry-rigged military commissions, that are the true heirs to Nuremberg’s legacy of holding perpetrators of grave criminality accountable within a framework of law.