WHY THE LAWS OF WAR? A SEPARATION-OF-POWERS ARGUMENT FOR STRIKING THE MILITARY COMMISSIONS ACT
Mary Van Houten
I. SETTING THE STAGE: THE UNANSWERED ANTECEDENT QUESTION
B. The Court’s Invitation: Hamdan v. Rumsfeld
C. The Legislature’s Response
D. The Courts’ Change in Tone: Hamdan II / Al Bahlul
E. The Question Left Open
II. WHY THE LAWS OF WAR?
B. The Development of the Law of War
C. Historical Backdrop
D. Statutory Backdrop
E. Necessary Preconditions
1. Military necessity
2. In the theatre of war
3. For violations of the law of war
a. Not inchoate, non-universal crimes
b. Not federal crimes
III. WHY THE SEPARATION OF POWERS? THE NEGLECTED BRANCH
A. The Authority to Convene
1. The Executive branch
2. The Legislative branch
3. The Judicial branch
B. The Essential Roles of the Judiciary
1. To prevent abuse by the political branches
2. To preserve Article III authority
“‘In one day . . . has the fair character of this nation been blasted! That character for justice and mercy in which we had thought ourselves pre-eminent, and of which we had so proudly boasted to the other nations of the earth, is now prostrated as low as theirs.’”
From former President Bush’s initial military order (M.O.) establishing the Guantanamo Bay military commissions to the increasingly heated forum battle between the Obama Administration and Congress, the use of commissions has proven problematic politically and diplomatically, and, some argue, perhaps undermined the Administration’s ultimate detention purposes. But the Supreme Court has never directly addressed Congress’s authority to expand jurisdiction over federal crimes not recognized by the international law of war, as Congress purported to do under the 2006 and 2009 Military Commissions Act (“MCA”).
The MCA, which Congress stipulated did not codify “new” war crimes, expanded military commission jurisdiction over the crimes of conspiracy and material support of terrorism. But these stand-alone inchoate offenses are not violations of the international law of war, as confirmed by Supreme Court precedent, past and present scholarship, and the international community’s understanding. Left unaddressed, this extension dramatically changes the scope of the military commissions and threatens the delicate tripartite balance entrenched in the U.S. Constitution.
The D.C. Circuit strayed from its characteristically deferential trend with its first reversal of a military commission conviction, Hamdan v. United States, in October 2012. The court vacated the conviction of an already-released detainee, Salim Ahmed Hamdan, for material support for terrorism. To get there, the court held that Congress did not intend to apply the MCA retroactively to newly-proscribed crimes committed before 2006— and that the relevant statute at the time the crime was committed did not “encompass material support for terrorism.” Despite the MCA’s clear text to the contrary. As such, Hamdan’s conviction could not stand.
But when Hamdan challenged Congress’s precursor authority to make conspiracy triable by military commission, the D.C. Circuit provided: “We do not decide that antecedent question.” This preserved an unprecedented expansion of the traditional subject matter jurisdiction exercised by military commissions. Congress’s now-seemingly idiosyncratic authority to create new war crimes and subject them to military commission will again be put to the test: in April 2013, the D.C. Circuit granted the government’s petition for an unusual en banc rehearing of al Bahlul v. United States—the D.C. Circuit’s second-ever reversal of a military commission conviction. If the en banc rehearing does lead to the Supreme Court, as most suppose, how should the Court decide the “antecedent,” or prospective, question?
This Note attempts to constitutionally situate Congress’s expansion of military commission jurisdiction over non-international-law crimes in the 2006 and 2009 MCA. In particular, this Note answers whether there is something about the law of war itself that provides the constitutional ceiling by which Congress can require the adjudication of non-law-of-war offenses before a military commission. In the end, I argue that the law of war has always served as a structural constraint on the political branches’ authority to create military commissions per separation of powers and Article III doctrine. Whether or not the forum battle continues, it is clear that at least for stand-alone inchoate offenses, trial by military commission is improper.
Part I of this Note sets the stage for the preserved “antecedent question,” discussed above. In Part II, I explain not only whether the commissions’ jurisdiction has been limited to the law of war, but also why such limits are functionally necessary. In so doing, I also discuss why conspiracy and material support of terrorism have no place before military commissions. Since 2006, relatively little scholarship has focused on why, given this stipulation, military commissions must be limited to adjudicating violations of the laws of war. This Note attempts to fill that gap.
Finally, in Part III, I discuss the oft-neglected limitation to commissions’ offense jurisdiction: the Constitution and Article III. The expansion of military jurisdiction over federal crimes properly within Article III’s purview offends separation of powers. Further, the judiciary has always looked to the law of war to determine whether Congress has unconstitutionally established a military commission; it is its necessary and proper constitutional role to circumscribe such abuses.
I. SETTING THE STAGE: THE UNANSWERED ANTECEDENT QUESTION
Before discussing military commissions’ subject matter jurisdiction under the MCA, two points regarding terminology and approach are relevant. First, this Note does not argue that international law must serve as an external limit on Congress’s law-making authority. That the federal courts have not used international law as an authoritative Constitutional limit is evident, and though its application in the terrorism context would be prudent, the courts have not directly addressed this question. I do argue, however, that past practice, precedent, and pragmatic considerations indicate that the international law of war does give definition to such limits domestically, which the Constitution articulates in Article I, and also that constitutional separation of powers requires that such limits remain. 
Second, it is also true that Congress possesses unlimited authority to define new federal crimes under Title 18 of the U.S. Code within its ordinary Article I powers. This is not disputed. But, I contend, Congress does not similarly possess unlimited authority to make those crimes triable by military commission. This is so notwithstanding its enumerated powers to “Define and punish . . . offenses against the law of nations.” Rather, while Congress must authorize the commission and initiate its jurisdiction, there exists an additional constitutional restraint that must not be neglected, and which lies at the root of the jurisdiction question.
B. The Court’s Invitation: Hamdan v. Rumsfeld
In one of the few instances where the Supreme Court exercised the writ of certiorari over a case involving Guantanamo detainees’ rights, it ruled in favor of Salim Ahmed Hamdan—Osama bin Laden’s bodyguard and personal driver. After being detained for two years without trial, Hamdan was charged with two claims of conspiracy “to commit . . . offenses triable by military commission.” After two more years, the Supreme Court held that the commission lacked power to proceed regardless of Hamdan’s substantive offense: the procedural rules established by the military commission contravened statutory limits. This was the first time the Court rejected elements of the Bush Administration’s military commissions; it was a momentous decision.
The less cited—and equally powerful—plurality opinion in Hamdan I states that conspiracy to commit terrorism is not a cognizable violation of the law of war. Justice Stevens established, “[n]ot only is [a law-of-war commission’s] jurisdiction limited to offenses cognizable during time of war, but its role is primarily a factfinding one—to determine, typically on the battlefield itself, whether the defendant has violated the law of war.” Justice Stevens concluded that neither the historical record, nor Supreme Court precedent, nor scholarship, nor current international sources consider conspiracy a war crime.
Justice Stevens departed from what would be the logical conclusion: that Hamdan’s military commission lacked jurisdiction because conspiracy is not a violation of the law of war. Instead, he couched the issue in whether Congress had “positively identified ‘conspiracy’ as a war crime” in the relevant statute. Where Congress has not so codified, Justice Stevens explained, to establish jurisdiction over the offense “precedent must be plain and unambiguous” that it constituted a violation of the law of war. In other words, conspiracy could be triable by military commission if Congress had explicitly said so in 10 U.S.C. § 821, the statute authorizing jurisdiction over violations of the law of war. Justice Scalia, in dissent, scoffed at the creation of a “newly minted clear-statement rule.”
Though unnecessary to the holding, the plurality’s discussion has had profound implications on how the perceived authority of the commissions’ jurisdiction has evolved since 2006. That Justice Stevens tethered the authority to try an offense by military commission—even one that is clearly not a violation of the law of war—to Congress’s lawmaking power clouds the constitutional question: May Congress unilaterally and idiosyncratically create new “laws of war,” and require their adjudication before military commission?
C. The Legislature’s Response
By avoiding the constitutional issue, the Court created a vacuum in military power that Congressrushed to fill. In direct response to the invitation extended by Hamdan I, Congress passed the Military Commissions Act of 2006. The MCA revised the current statute authorizing the commissions, listing twenty-eight crimes—including conspiracy to commit terrorism and material support of terrorism—that could be tried by military commission. The commissions were authorized to exercise jurisdiction over “any alien unprivileged enemy belligerent” whose offense was committed “before, on, or after September 11, 2001.” Arguably, to avoid the jurisdictional issue, Congress also provided:
The provisions of this subchapter codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before [its] enactment, . . . but rather codifies those crimes for trial by military commission.”
“Because the provisions of this subchapter” (including provisions that incorporate definitions in other provisions of law) are declarative of existing law, they do not preclude trial for crimes “that occurred before the date of the enactment of this chapter.”
Merely stating that the MCA’s provisions codify existing law does not make it true ipse dixit. There is an abundance of scholarship—both for and against Congressional authority in this matter—which concedes the newly-proscribed offenses are not declarative of existing international law of war. Even the government so recognizes. The drafters of the MCA were trying to make a legal problem disappear by redefining it.
After President Obama’s Executive Order requiring the closure of Guantanamo, his Detention Policy Task Force issued a report in 2009 affirming that the White House preferred federal terrorism crimes to be tried in federal court, and violations of the law of war to be tried in military commission. The Senate Armed Service Committee’s report identified “ensuring the offenses charged in military commissions are law of war offenses,” as a key element for change. In July of 2009, Assistant Attorney General David Kris plead before the Senate:
While [material support for terrorism] is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant likelihood that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby threatening to reverse hard-won convictions and leading to questions about the system’s legitimacy.
However, Congress chose not to eliminate either conspiracy or the material support charge when it amended the statute in October to clarify the law governing military commissions. Despite Hamdan I’s ruling, it reaffirmed that the triable offenses applied to pre-2006 conduct. When the Administration publicly announced in November 2009 that it planned to transfer five detainees from Guantanamo to the Southern District of New York for civilian trial, Congress eliminated funding for the detainees’ transportation. This “effectively made military commissions the only viable option for trying Guantanamo detainees. . . for the foreseeable future.”
Under the expansive permission of the MCA, the Court of Military Commissions Review (CMCR) unanimously upheld Hamdan’s conviction of material support for terrorism in 2011. That same year, the CMCR affirmed the conviction of Ali Hamza Suliman al Bahlul, a Yemeni citizen who had boycotted his trials, of conspiracy to commit terrorism with al Qaeda. Al Bahlul, Osama bin Ladin’s public relations secretary and “media man,” was sentenced to life imprisonment. In both cases, the CMCR ruled on the subject matter jurisdiction in deference to Congress: “Where Congress’ determination that certain acts constitute offenses under the law of nations is consistent with international norms, we also conclude that the specific statutory scheme employed by Congress . . . is due great deference.” Most trials by military commission settled by plea bargain, and until 2012 the D.C. Circuit did not reverse a single conviction.
D. The Courts’ Change in Tone: Hamdon II / Al Bahlul
The D.C. Circuit finally stepped in during October 2012 in its first reversal of a military commission conviction. In January 2013, the D.C. Circuit vacated per curiam al Bahlul’s conviction after the government conceded Hamdan II controlled. But the issue is far from settled. The government filed a petition to re-hear al Bahlul en banc, perhaps stalling before it appeals the decision to the Supreme Court, which the D.C. Circuit granted in April 2013.
The court’s holding in Hamdan II is twofold. First, it held that the MCA—despite its clear language—did not authorize retroactive prosecution of war crimes that were not prohibited at the time of their commission. In reaching this conclusion, Judge Kavanaugh argued that Congress had intended (per its stipulations) to avoid an Ex Post Facto Clause issue. He maneuvered, “as stated in the statutory text . . . Congress believed that the Act codified no new crimes and thus posed no ex post facto problem,” and it “would not have wanted new crimes to be applied retroactively.”  This was, perhaps, a clear inversion of Congress’ intent in enacting the MCA. The court’s interpretation is suspect, however. Whether the MCA can apply retroactively, or prospectively only, is the main question prompted by the D.C. Circuit in the al Bahlul rehearing.
Second, after he declared the MCA did not apply to pre-2006 conduct, Judge Kavanaugh directed: “Hamdan’s conviction stands or falls on whether his conduct was prohibited by the pre-existing statute, 10 U.S.C. § 821, at the time he committed the conduct.” Justice Kavanagh, like Justice Stevens before him in Hamdan I, directly tied his analysis of the commissions’ offense jurisdiction back to statute. Because 10 U.S.C. § 821—which limited commissions’ jurisdiction to violations of the international law of war—did not include material support for terrorism, Hamdan’s conviction could not stand. The entire analysis of whether this offense was a war crime was couched in this statutory framework.
In so doing, the court ducked the more difficult, prospective question. When Hamdan challenged whether Congress had Article I authority to make material support for terrorism triable by military commission in the first instance, the court held: “We do not decide that antecedent question.” In its minimalist tradition, the court rested on the retroactive issue and the prior statutory scheme instead.
Judge Kavanaugh did address the antecedent question, however. He alone concurred in footnote six, concluding that “Congress’s war powers under Article I are not defined or constrained by international law,” since “the U.S. Constitution does not give the international community—either directly, or indirectly through the vehicle of international law—a judicially enforceable veto over Congress’s exercise of its war powers.” As a leader on the D.C. Circuit, this footnote may be a portent of how the en banc hearing might decide. But three conservative judges decided Hamdan II; the full panel rehearing al Bahlul might issue an even more unfortunate opinion for the government.
Even on Hamdan II’s narrow grounds, the government condemned, “[t]he detrimental effect of Hamdan II on the military commission system is apparent: every pending military commission prosecution, and every conviction already obtained under that system, have included either conspiracy or material support charges (or both) for conduct committed before 2006.” But, in actuality, most of the detainees’ charges include other offenses in addition to the inchoate offense; stand-alone inchoate offenses are rare. In light of the funding restrictions, removing these offenses could mean that the detainees would continue to be held without charge—a discouraging truth for a majority of the Guantanamo detainees.
However, regardless of its immediate effect, the MCA still requires future convictions of these offenses to be tried before military commission. This is the case even though these offenses are ill-suited for the obvious procedural and evidentiary inadequacies in military commission trials, resulting in largely unfair process and almost guaranteed convictions. The unfairness would particularly operate over “smaller fish,” i.e., low- and mid-level terrorism suspects who did not individually participate in the attacks. This is made all the worse by Congress’s funding restrictions, by which “the politics of bringing detainees to the U.S. for trial have foreclosed federal criminal courts as a possible option.”
Further, the MCA provides no limiting principle on Congress’s authority to require the adjudication of idiosyncratic crimes before commissions traditionally used for battlefield preparation. This completely abuses the purpose of the commissions and the prohibition of their jurisdiction over federal crimes. Finally, in the long term, this sweeping construction would undermine the traditional “case or controversy” authority of Article III and the rule of law the U.S. Constitution embodies.
E. The Question Left Open
Neither the Supreme Court nor the D.C. Circuit has ever squarely addressed the scope of Congress’s powers to expand military commission jurisdiction over enemy combatants beyond violations of the laws of war. The question remains: does Congress possess unlimited authority to make idiosyncratic crimes triable by military commission?
If the en banc panel reads the MCA to apply retroactively, and if it does not go as far as Judge Kavanaugh opines, then it may likely still avoid the antecedent issue with the Ex Post Facto Clause. If the MCA is not read retroactively, the decision may turn, again, on whether conspiracy is traditionally a violation of the law of war. This latter option would send the D.C. Circuit and the Supreme Court again into a deep delve of history of whether conspiracy was actually tried per the U.S. law of war, not very different than the discussion already reached by a plurality in Hamdan I. Thus, I argue, instead of analyzing sparse cases that occurred over 200 years ago, and engaging in illogical statutory interpretation, the proper response is to finally reach the antecedent question and the constitutional basis for the commissions: the subject matter jurisdiction of law-of-war military commissions is limited to offenses against the law of war.
In 2002, Professor Turley noted that we stand at a “crossroads” in embracing or rejecting such tribunals, for they “[promise] a new and uncertain future for our constitutional system.” With an even more dramatic expansion of the commissions’ jurisdiction in 2006, and without the prospective issue reached, the stakes are much higher for future detainees subject to military commission, jeopardizing our constitutional system as a whole.
II. WHY THE LAWS OF WAR
The “antecedent question” should have been met with the logical and constitutional conclusion: the subject matter jurisdiction of military commissions is limited to violations of the law of war. Tracing the use of the law of war in military commissions’ history, it is obvious not only if the laws of war have operated as such a limit, but also why they have so operated (even without positive statutory permission).
By analyzing the functional qualities of the commissions and the primary cases that have given those functions meaning, this Note differs from literature that examines commissions chronologically only. A functional approach results in a comprehensive understanding of the centrality of the laws of war within military commission function and precedent. It similarly indicates why, historically, commissions did not exercise jurisdiction over inchoate crimes that might today approximate conspiracy or material support of terrorism. This helps elucidate why even the “old wineskins” of international law are still suited to limit the conduct in the “new warfare” witnessed in the increasing terrorist threat, making the expansion of military commission jurisdiction still improper for the newly proscribed offenses in the MCA. Finally, this Part argues that such offenses are federal domestic crimes and, therefore, are constitutionally impermissible to be tried by military commission.
B. The Development of the Law of War
Robert Kaplan, writing near the end of World War II, wrote: “Under this law of war which is constitutionally recognized [in the “Define and Punish” clause], rules have been developed from decided cases, opinions from high ranking officials . . . and writings of recognized authorities,” which designate the extent of jurisdiction of military commissions. There are several elements here worth picking apart.
First, despite the government’s oft-repeated argument that military commissions may try violations of the U.S. common law of war, it has “long been understood” that the law of war refers to the international law of war. The weight of the record shows that the “U.S. common law of war” is actually international law, or is fully constituted by international law. This is intuitive since military commissions are in part authorized by Congress’s power to “define and punish offenses against the law of nations,” which incorporates international law. Even the U.S. Army Manuals provide that the law of war is comprised of customary international law and treaties since 1956. Nonetheless, the two questions raised in the en banc grant specified “international law of war,” so perhaps the government’s argument in this regard is moot.
Second, putting that matter aside, it is helpful to situate the emergence of the international law of war body. International humanitarian law, which governs relations between states during armed conflict, grows out of treaties and custom. The latter is a type of common law; it is predicated on the “general and consistent practice” of nations. This formation is key: states enact federal laws which are prosecuted domestically, and then, with consistent practice and coalescing over time, those laws become customary international law applicable during wartime. But Congress inverts this process in the MCA: it attempts to define a domestic law as a customary international norm, and then enforce it unilaterally on alleged war criminals. This is Congress anachronistically redefining international law in a self-serving manner. It is plain why one nation’s idiosyncratic view defining the law of war is not only delusional but also imprudent.
C. Historical Backdrop
Though skewed since a promulgation of scholarship developed since President Bush’s M.O. in 2001, the sparsely-used military commissions possess a “long and troubled history” with “questionable origins and prior abuses.” Tellingly, military commissions are not routinely used during wartime. Since World War II, they have not been used in any other war before the “War on Terror” “—not in Korea, Vietnam, the First Gulf War, nor any other context involving military [force].”
Still, though invoked rarely, military commissions have been used in three situations historically. The third type, which is “utterly different” from the former two — which are used in territory where military law or military government has been established—is only “convened as an ‘incident to the conduct of war.” These commissions are established only when there is a need to discipline enemies who, in their attempt to thwart the U.S. military effort, have violated the law of war. Justice Stevens dubbed such tribunals “law-of-war commission[s].” This is concededly the type of commission operating in the post-9/11 context.  In other words, because law-of-war commissions are not established pursuant to martial law, to remain constitutional they carry a “far more serious subject matter jurisdiction”—they must only try violations of the law of war.
Law-of-war military commissions formally evolved from an exception to the jurisdiction of court-martial, which was restricted to trying American soldiers for violations of the common law of war. To distinguish the law-of-war commissions from courts-martial, the commissions were called by separate names (until the Civil War, when the two names were subsumed into the title “military commission”). It is relatively established that these Councils, instituted by General Winfield Scott to “suppress [alien combatants’] disgraceful acts abroad until Congress could be stimulated to legislate on the subject” were the very first military commissions.
The second most significant change in military commission history was introduced by the Lieber Code. The Lieber Code confirms the distinction between the tribunals declared under martial law and military commissions: “[i]n the armies of the United States the first [statutory law] is exercised by courts-martial; while cases which do not come within the Rules and Articles of War, or the jurisdiction conferred by statute on courts-martial, are tried by military commissions [common law of war].” Modern day commissions (in the United States and abroad) can trace their lineage directly to the Lieber Code; it was the first formal authority granting military commissions subject matter and personal jurisdiction to try violations of the laws of war, specifically.
Thus, this law-of-war origin is the commissions’ distinguishing factor from other criminal prosecution. Professor Corn, in his article preceding the 2006 MCA, supported the constitutionality of the Bush tribunals because they were a “distinct, legitimate, and historically recognized mechanism for enforcing the law of war.” Congress, through the MCA, attempts to violate those very qualities—while deflecting its attempt to do so.
D. Statutory Backdrop
Prior to the 9/11 military commissions, neither the Court nor Congress had ever addressed expanding the subject matter jurisdiction of the commissions beyond what the international law of war permitted. Both Congress and the Supreme Court tied that jurisdiction directly to the law of war. Thus, why the federal courts began binding the offense jurisdiction of the commissions to positive law—without addressing the necessary constitutional limits—is unclear.
The military commission is not explicitly mentioned in the Constitution, nor was it created by statute.It did not evolve from specific Congressional grants; rather, it evolved as “a pragmatic gap-filler” to the jurisdiction of courts-martial. In fact, Congress did not codify the tribunals until its 1916 revision of the Articles of War. In that revision, Congress expanded the concurrent reach of courts-martial jurisdiction to include “any other person who by the law of war is subject to trial by military tribunalsFalse” Notably, rather than tie the power to its own “Define and Punish” powers, Congress recognized the law of war as “a separate source of authority for military commissions.”
And because Congress did not want to mistake permitting the courts-martial to subsume military commission jurisdiction, it also included Article 15: “[t]he provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions . . . of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions . . . .” The specific reference to offenses against the law or war—not requiring further definition by Congress—undermines the assertion that positive law offenses are the only or primary precursor to military commissions’ subject matter jurisdiction.
Another school of thought argues that, if Congress has not acted to define the jurisdiction, then the commission is able to draw on the law of war itself until Congress has done so. Indeed, this is the interpretation that Justice Stevens partially exercised in Hamdan I. But, while this construction appears valid, it avoids addressing whether Congress may go beyond constitutional limits when it so defines. Taking that authority to its limits would be reductio ad absurdum: it could subsume the entire jurisdiction of Article III. Thus, while Congress may authorize the establishment of a commission, the jurisdiction is still presumptively (and constitutionally) tethered to international-law offenses.
Most of the case law before 9/11 presumes such a distinction. In Ex Parte Quirin, a seminal military commission case from World War II, the Court permitted trial by military commission of six Nazi saboteurs. The Court inferred Congressional authorization for the commissions in the Articles of War—a notoriously controversial analysis. The subject matter jurisdiction of the commissions, however, was explicitly tied to the law of war, which was then codified by Congress:
Congress, in addition to making rules for the government of our Armed Forces, has thus exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals.
And just four years later, the Court recognized this same distinction in Yamashita:
The trial and punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the conduct of war operating as a preventive measure against such violations, but is [also] an exercise of the authority sanctioned by Congress to administer the system of military justice recognized by the law of war.
This makes it clear that Congressional authorization over military court jurisdiction is not without international-law limits; the law of war was a necessary and presumed prerequisite and operated as such even after Congress’s more explicit forms of codification.
E. Necessary Preconditions
With this backdrop, it becomes clear why the international law of war has always served as a constitutional ceiling on Congress’s authority to subject individuals to trial by military commission. Despite the Court’s failure to promulgate a specific law-of-war jurisdiction test, the MCA’s extension over the triable offenses is diametrically opposed to one-hundred-and-fifty years of established history and precedent.
William Winthrop—dubbed the Blackstone of military law—notes several “preconditions” that have developed for military commission jurisdiction in his influential treatise. Because none of these prerequisites hold for the MCA’s extension of jurisdiction, the military commission as currently constructed by the MCA is “too attenuated from its jurisdictional foundation to be considered legitimate.” I discuss Winthrop’s most pertinent functional preconditions here.
1. Military necessity
The reason the framers permitted the use of military commissions (as exceptions to Article III courts) was to permit the Executive’s discretion for “military readiness” and “combat effectiveness” during war.Enemy combatants posed an immediate and present danger; therefore, speedy detainment and trial was necessary for preserving successful warfare.
The first “Councils of War,” for instance, tried Mexican guerillas pursuing illegitimate modes of warfare—such as robbing and murdering civilians—that were definitively violations of the law of war. In the Civil War, General Halleck issued General Order Number 1, “which specifically authorized Union armies in Missouri to begin trying civilians for violations of the laws of war” in order to “counteract the activities of guerillas.” Such offenses virtually prohibited the military from functioning on the battlefield; therefore, the commissions became essential to restraining such a threat. This necessity was the traditional understanding even until World War II, when the Court asserted in Quirin:
An important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law[s] of war.
This limitation is intuitive when considering the commissions’ original purpose: the need to dispense justice quickly to deter harm by enemy combatants captured on the battlefield. This is why certain criminal procedures, such as the Miranda rights, do not apply to enemy combatants before military commissions; their application to international law crimes would be impractical and dangerous. But for inchoate offenses, i.e., conspiracy and material support of terrorism, “[t]he same urgency would not have been felt vis-à-vis enemies who had done little more than agree to violate the laws of war.”
Further, the historical rationale for establishing the commissions is irrelevant for theses offenses. The detention and trial of “associated” forces to al Qaeda is not necessary to deter an immediate or present threat because their alleged offenses are not linked to an immediate attack. While, of course, the United States must act to prevent future acts of terrorism and protect the national security, the corresponding need to place those combatants before military tribunal is incongruous.
2. In the theatre of war
The military necessity requirement is intertwined with Winthrop’s requirement that military commissions “legally assume jurisdiction only of offences committed within the field of the command of the convening commander,” or in the theatre of war. Once the emergency that permitted the commission’s use is over, the authority upon which they were based ceases, too.
The second quasi-military commission in our history took place during the first Seminole War, when in 1819 General Jackson charged two European men with inciting, leading, and supplying weapons for Indian attacks against the United States—violations of the law of war. Some congressmen demanded to know whether there was absolute necessity in their execution, since the war had come to an end ten days before the execution. Review of the legality of men’s execution “produced the longest debate ever to take place in the thirty-year history of the Congress.” While the House “declined to disapprove” Jackson’s actions, Jackson was severely criticized by both houses of Congress, and he retreated from his contention that the trials were valid military commissions. In the Civil War a few years later the Court in Ex Parte Milligan confirmed; “[w]e by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.”
This requirement is also why law-of-war commissions may only exercise authority over aliens who have committed an unlawful act of war. Combatants are privileged to murder and destroy property during wartime. When they are captured on the battlefield, they are entitled to treatment as prisoners of war (POWs). But combatants who fight “informal and illegitimate war” in violation of the law of war are not entitled to the same protections. A war crime is conduct that falls outside the immunity provided to combatants by international law; this triggers an application of the laws of war to the situation and over the unprivileged belligerent. The MCA’s application seems further removed here since it incorporates the view that all acts committed by “unprivileged belligerents” are war crimes, making the scope of the act enormously sweeping.
The precise boundaries of the “War on Terror” is outside the scope of this Note. Still, because Hamdan’s acts did not actually occur during wartime (since war was not “declared” until 2001), a plurality of the Court found his conduct misplaced for trial by military commission. While this sets good precedent for detainees held at Guantanamo Bay for their participation in 9/11, the Administration has authorized military force on over indeterminable associated forces throughout the indefinite future. The D.C. Circuit may even permit the MCA to be applied retroactively. Thus, future convictions will inevitably rely on Congress’s newly-defined offenses only tangentially connected to the War on Terror.
3. For violations of the law of war
As demonstrated, the law of war is an irreducible predicate to every precondition and is itself one such commonly-understood and presumed prerequisite. Law-of-war commissions—as exceptional Article I tribunals—are constitutional only because they are limited to trying violations of the law of war, from which they originally sprang.
As a result, neither conspiracy nor material support for terrorism has ever been tried by a law-of-war military commission before 9/11—whether to combat a previous terrorist threat or its approximate. This next Part will discuss in depth two defining characteristics of such limits on military commission jurisdiction, and how violations of the law of war differ from the federal crimes proscribed in the MCA.
a. Not inchoate, non-universal crimes
The Articles of War sharply distinguished between military crimes and conventional crimes committed by the military. Winthrop noted that military prosecution was “limited to offenses that had a ‘reasonably direct and palpable’ relationship to military training and discipline.” Such offenses included both violations of the norms of battlefield behavior (e.g., willful killing of prisoners of war, willful killing of prisoners) and those dependent on the status or identity of those who commit them (e.g., spying, sabotage). Accordingly, types of crimes traditionally adjudicated before a military commission included (1) complete, overt violations of the law of war, and (2) universally-defined violations of the law of war.
First, Winthrop argues that military commission jurisdiction “should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actual attempts to commit, and not in intentions merely.” It is not enough to intend to violate the law of war unless the overt acts are themselves violations of the law of war, or if the acts constitute steps “sufficiently substantial” to qualify as attempt. In the Civil War, General Henry Halleck’s commissions were used to counter a range of violent offenses—almost exclusively for acts of overt and extreme violence aimed at Union soldiers or infrastructure. The Court also deliberately identified a complete, overt war crime in Ex parte Quirin, and, tellingly, never reached the conspiracy charge also at issue.
Secondly, similar to the Court’s analysis of the cause of action in Sosa v. Alvarez-Machain and its progeny in the Alien Tort Statute context, the offense must be universally recognized as a violation of the law of war. The adjudicable violation in Ex parte Quirin was “by universal agreement and practice” recognized as an offense against the law of war: the defendants passed naval lines in civilian dress with hostile purpose. And this case set the “high-water mark of military power to try enemy combatants for war crimes”—clear and universal practice. Extending this principle to convictions for conspiracy and material support of terrorism is untenable: these are stand-alone offenses that, at least in the 9/11 context, are not linked to a complete or overt act of terrorism, and neither offense is included in the international body of law.
The only crimes that could be comparable to the MCA’s newly triable offenses are, perhaps, aiding the enemy and spying. But these are very different from the triable offenses at issue in the MCA. First, they are both widely considered international-law offenses. Second, the degree of culpability necessary to convict an individual of either crime is much higher than for conspiracy or material support of terrorism.
In oral argument for Hamdan I, Katyal reasoned that conspiracy and aiding and abetting were entirely different things: “One is a stand-alone-offense. And the [other] is a theory of how to prove a violation . . . . ‘Aiding and abetting,’. . . requir[es] a higher level of individual culpability.” And even charges related to aiding and abetting—like civilians aiding the guerrillas in the Mexican-American war—were linked with but distinguished from other completed acts that were definitively war crimes. Finally, aiding and abetting a declared violation of the law of war, understandably, may itself be considered an international-law crime. Mere membership in a criminal group—even al Qaeda—does not result in a similar level of liability.
The difference from spying is clear. From the beginning, and in accordance with the military necessity discussion below, spies were executed because it was the only means of “guarding against the mischief” they may cause if the information was released. In fact, the very first traces of the use of a military commission exist in the trial and execution of a British Major during the American Revolution. Major John Andre was caught in civilian clothes near American lines carrying papers uncovering the defense of West Point, implicating a treasonous plot with General Benedict Arnold. Though “[t]he conspiracy itself was not a violation of the laws of war,” spying historically was—and President George Washington approved Major Andre’s death sentence.
b. Not federal crimes
Though violations of the law of war are frequently tried in federal court, the reverse is never true: military commission must never try those accused of federal crimes when federal courts are operating. Because the conspiracy and material support of terrorism offenses are not violations of the laws of war, they are by definition federal crimes within the purview of Article III courts.
The prohibition of trying inchoate federal crimes by military commission makes sense: federal courts are more apt and better equipped procedurally to charge combatants with preemptive crimes not linked to actual attack. Relatedly, military officials staffing the commissions are not better equipped or more competent to hear inchoate offenses—independent federal judges are. While individual nations may proscribe these offenses under their domestic laws, they may not—as Congress attempts—transform these laws into international law and require their adjudication before military commission. President Obama’s Detention Policy Task Force confirms that military commission jurisdiction is “substantially narrower than our federal courts,” because they are used “only to prosecute offenses against the law of war committed in the course of that conflict.” This is for good reason, tied to the offense jurisdiction:
[Prior military commission] cases have endorsed the use of military commissions, even when it was established that the rights afforded to individual defendants prosecuted before them were substantially different than those afforded criminal defendants in traditional domestic prosecutions. The consistent rationale running through these cases is linked to the purpose upon which these tribunals are founded: enforcement of the law of war.
The jurisdiction is also limited because trial by military commission necessarily exempts defendants from certain Constitutional protections in federal courts—an asset to some opponents of detainees’ Constitutional rights. Professor Vladeck argues that the 5th and 6th Amendments grand- and petit-jury trial protections serve as one such constitutional limit on military commissions’ jurisdiction. He reasons that the right to jury does not limit military commission jurisdiction only because it is exercised over combatants charged with violations of the laws of war.
Thus, even though the judicial system may be incompetent to review “battlefield justice,” the extension of the enemy combatant status to reach [federal] criminal acts . . . raises more profound questions.” Many cast doubt on the Administration’s power to “step outside of the criminal justice system” and “hold citizens as enemy combatants for . . . acts that may be charged as federal crimes.”
Even military lawyers have repeatedly clashed with Congress and government lawyers over the law-of-war commissions. General Martins questioned whether it was “valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law[.]” Before al Bahlul, Martins announced he would drop conspiracy from the list of charges in the Guantanamo cases and focus on “legally sustainable” ones, like attacking civilians. But Attorney General Eric Holder and the Department of Justice continued to press the conspiracy charge against al Bahlul, which (as many expected) was fruitless.
Tracing the laws of war throughout the theoretical and empirical practice in the United States demonstrates a Constitutional and inextricable reliance on the laws of war as a necessary limitation on military commissions. But this limitation is necessitated not only by precedent and prudency; it is required and reinforced by an entrenched system of constitutional separation of powers. I turn to this discussion now.
III. WHY SEPARATION OF POWERS? THE NEGLECTED BRANCH
A. The Authority to Convene
To quote Justice Stevens in Hamdan I, “trial by military commission is an extraordinary measure raising important questions about the balance of powers in our constitutional structure.” The authority to establish military commissions is found in the Commander-in-Chief and war powers vested in the political branches. This establishment is fundamentally a constitutional exercise; the commission must exist within Constitutional limits, or it risks posing a “[danger] to liberty if not confined within its essential bounds.” This analysis must not be excised from the statutory framework created by the MCA and tacitly upheld by the Court in Hamdan I and Hamdan II.
The existence of war, and the concomitant expertise and efficiency arguments for military oversight, permits “exceptional” Article I jurisdiction otherwise properly vested in Article III. As discussed, the commissions are considered an appropriate forum only because of the military nature of their proceedings and “the nature of offenses subject to their jurisdiction—i.e., violations of the law of war”). But the Court’s deference to the political branches and non-interference in upholding these limits jeopardizes our system of separation of powers, culminating in continued convictions of detainees at the hands of the U.S. military justice system.
This Part will discuss how the MCA subverts the authority structures traditionally required to establish a commission’s jurisdiction. Second, it will underscore the judiciary’s essential role in proscribing this subversion and in asserting Article III authority over offenses within its constitutional purview.
1. The Executive branch
First, the MCA contravenes the authority placed in the Executive branch to convene a military commission. “[T]he military justice system [maintains] its discrete existence by its link to a core executive function” in its assistance of the Commander-in-Chief duties. The commissions are also permitted for expertise and efficiency purposes: members of the military are uniquely suited to judge law of war violations, and commissions as “an instrumentality for the more efficient execution of the war powers.” Given these needs, the relevant constitutional question is not whether the military justice system should exist at all, but “what the limits of that system’s jurisdiction would be.”
Sources confirm that the Commander-in-Chief authority is abused when extending beyond wartime contingencies. It is very different to assess guilt and mete out justice than it is to contain combatants from further illegal obstruction on the battlefield. When the President moves outside of the constitutional minimums, Professors Katyal and Tribe argue, he or she has “moved outside the perimeter of his role as Commander in Chief of our armed forces and entered a zone that involves judging and punishing alleged violations of the laws . . . .” When the triable offenses are not linked to the motivations for the commissions in the first place, this Note argues, their jurisdiction becomes increasingly suspect.
What is most troubling is that the “[m]ilitary tribunals represent the most extreme manifestation of the military’s emergence as a semi-autonomous system of governance.” With unilateral Executive decisions made to detain alleged terrorists with the broad sweep of the MCA, the Administration could sweep up a large number of individuals at the mercy of a system contained entirely within the Executive branch. Such evolution is paradoxical, because it may damage the military system in the long term. Brigade General Mark S. Martins, Chief Prosecutor in the Office of Military Commission, argued that the legitimacy of the system itself would be preserved if it scaled back the charges triable before it. Soon after, he joined al Bahlul’s defense counsel in asking the military commission judge to dismiss the stand-alone charge.
2. The Legislative branch
Over time, the Supreme Court required Congress to authorize and ordain the establishment and jurisdiction of the military commissions. The authority is found, primarily, through the “Declare War” clause and the “Define and punish offenses . . . against the law of nations” clause, as well as its increasingly expansive authority to “constitute tribunals inferior” to the Supreme Court. While Congress must authorize the jurisdiction of the tribunals, it must not authorize jurisdiction that is stricter than what the international law of war permits.
Before 9/11, Congress had never attempted to expand—rather than define and establish—the jurisdiction of the law-of-war commissions. Even if its “Define and Punish” powers are unlimited, the law of war operates as a constitutional ceiling on Congress’s authority to authorize military commission jurisdiction. As far back as 1865, the Attorney General declared that Congress could “prescribe how all such tribunals are to be constituted, what shall be their jurisdiction, and mode of procedure,” but could only “take cognizance of such offenses as the laws of war permit.”
3. The Judicial branch
Missing from traditional jurisdictional analyses is Article III and the judicial branch. Historically, military courts were not subject to review from any constitutional court (unless via the writ of habeas corpus) because the traditional law-of-war commissions were deemed outside federal courts’ ordinary competence. That changed when the Court began reviewing jurisdictional decisions as early as the Civil War. Today, after the outcry over Bush’s tribunals, collateral review by the D.C. Circuit is required for decisions made by the CMCR.
The Supreme Court once claimed that it “played no role in [military law’s] development,” since, like state law, it exists separately from federal law. But, in light of Erie and reverse-Erie doctrines, the contention that federal and state law operates in entirely foreign spheres is untenable. As is obvious in the offense jurisdiction in the MCA, these systems inevitably conflict—when they do, the judiciary is the prescribed authority that must decide which trumps. First, Article III is implicated notwithstanding the political branches’ war powers in a system of checks and balances; every extension of military commission jurisdiction—specifically subsuming federal crimes—is a negation of Article III jurisdiction. The federal courts always retain the authority to determine their own jurisdiction.
Secondly, the courts have always possessed and acted upon the authority to rule on the jurisdiction of military commissions pursuant to Marbury v. Madison. In fact, the only tribunals it has declared unconstitutional were based on lack of jurisdiction over the person or the offense. For instance, in Milligan, the Court created a bright-line rule by looking at Article III jurisdiction and deciding that military tribunals were unconstitutional. It circumscribed the authority of Congress, holding that “it was not in the power of Congress to authorize” military tribunals where civilian courts were operating.
Justice Scalia, in his dissent in Hamdan I, remarked: “Congress, not the Court, is the branch in the better position to undertake the ‘sensitive task’” of determining who decides the “validity of the conspiracy charge.” I argue the opposite. Who will restrain the political branches from expanding military commission jurisdiction over insular minorities without the right to due process or representation before the law? Not the executive branch—they have already tried, both to restrict the passage of the MCA and to require civilian trial for defendants. Congress subverted both efforts. The Court sits by not only as it watches the abuse, but as its own jurisdiction is stripped—and given the deference to statutory authority in Hamdan I—without limit.
B. The Essential Roles of the Judiciary
1. To prevent abuse by the political branches
The essential function of the judicial branch is to prevent abuse and illegality by other branches—notwithstanding the demands of war. The root of the judiciary’s role envisioned in The Federalist Papers and encapsulated in the checks-and-balances doctrine ensures that the government’s “several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” This is “essential to the preservation of liberty.” The courts’ non-intervention and deference exhibited in Hamdan II and al Bahlul, however, permits the abuse of the political branches’ powers during the period most susceptible to abuse.
As the majoritarian branches, the political branches are more apt to view liberties as fluid in times of hostilities. Professor Glazier noted, “[w]hat we are seeing is that it’s easy for civilian members of the government, who are in power for a comparatively short time, to get tunnel vision on a particular case or situation[.]” In the past, this deference to the political branches has resulted in severe harm. For instance, in Korematsu the Supreme Court upheld the Executive internment of Japanese Americans that is now lauded as one of the most tragic decisions in the Court’s history. In other circumstances, however, the Court has responded when the political branches has acted to circumscribe rights. Arguably, “every generation has heard the siren’s call of those who encourage extrajudicial means to deal with contemporary enemies,” and, even so, the courts are properly equipped to uphold the Constitution.
It is perhaps understandable why Congress expanded the scope of military commission jurisdiction. Some scholars note that a “more comprehensive list of available offenses would invariably facilitate prosecution before the commissions,” which avoids the evidentiary burdens required by Article III tribunals. Because this expansion is beyond the rationale for constituting war tribunals in the first place (i.e., to try laws of war), it is possible that Congress intended to facilitate outcome-determinative results. Additionally, so long as it remains the path of least resistance, the military commission will continue to be used—especially since the terrorist threat and its associated paranoia lends itself well to rapid punishment. Permitting this type of power sets a dangerous precedent for our understanding of structural constitutional guarantees and individual liberties during war.
Finally, it seems as if Congress has subverted traditional power dynamics by tying the Obama Administration’s hands with regard to ordering trial by military commission. Professor Fidell laments: “Decisions about prosecuting detainees have become about what is feasible as opposed to what is rational. The constraints imposed by Congress are forcing officials into contorted positions which are particularly uncomfortable for military lawyers, who don’t want to get near the ‘third rail’ of destroying reciprocity.”  Maintaining reciprocity—i.e., how other countries treat future American detainees—is one such diplomatic function reserved for the Executive branch, which is being subverted.
Another subversion threatens the Executive’s role in national security itself. For instance, with full knowledge of the shortcomings of military commissions, other countries are now less apt to extradite terrorists to the United States. In March 2013, trial by civilian courts was a “diplomatic assurance” before Italy extradited an alleged terrorist here. Rather than protect national security as these military commissions were designed to accomplish, Attorney General Holder criticized, “[t]hose unwise and unwarranted [funding] restrictions undermine our counterterrorism efforts and could undermine our national security[.]” The judiciary is the branch authorized to withhold such abuses.
2. To preserve Article III authority
Additionally, the essential function of the judiciary is to ensure Article III independence by upholding the supremacy of the Constitution, protecting individual rights and liberties, and maintaining a functional rule of law in the United States. While Article I jurisdiction has increased extensively to build up the Welfare State (for which the Court is also criticized for overly deferring), the Court must not compromise the rights to a fair and independent Article III trial for federal crimes. Thus, a more sustainable ground for annulling the MCA’s jurisdictional provisions is that it unconstitutionally violates non-Article III doctrine.
Historically, military commissions were an infrequently used exception to jurisdiction properly vested in the judiciary. But the Court in Commodity Futures Trading Comm’n v. Schor eliminated these formulaic categorizations; a tribunal may not unqualifiedly exist merely because it can be fit into one of these categories. Instead, the Court must determine whether the Article I tribunal unconstitutionally assumes the “essential attributes” of Article III power. Congress’s delegation must pass Schor’s already-too-lenient balancing test: Do the benefits of the legislative court (i.e., efficiency and expertise) outweigh the purposes and protections underlying Article III (i.e., fairness to the litigant by providing an independent judiciary and the role of Art. III in separation-of-powers)?
As a result of the MCA’s removal from the traditional prerequisites, non-Article III doctrine is offended. First, the proscribed offenses in the MCA are crimes within the exclusive purview of federal prosecution and are irrefutably not accepted by the international community. This approaches jurisdictional breadth over non-specialized offenses, which was condemned by the Court in Northern Pipeline. Second, proximate guarantees of Article III independence are nonexistent. The tribunals are staffed entirely by military officials, governed by rules determined by the Department of Defense, and the procedures and evidentiary guarantees afforded to detainees indisputably favor the government.
Further, permitting Congress to define triable offenses contains no limiting principle, which was perhaps the underlying rationale for striking the Article I tribunal at issue in Northern Pipeline. In this “war,” there are no regular combatants entitled to prisoner-of-war protections—every combatant is an enemy, even a fifteen-year-old boy who kills a soldier on the battlefield. Most dangerously, Congress may now unilaterally define triable violations and, together with the Executive, determine which and when detainees must be subject to military court jurisdiction. Such abuse could usurp all federal court jurisdiction over foreigners tangentially connected to acts of terrorism. As Professor Turley argues, this extension “threaten[s] not only to pull the military further away from its core identity and functions, but to destabilize the tripartite system of government.”
On the other side of the balance, the alleged military expertise and efficiency benefits the government claims are irrelevant to the stand-alone inchoate offenses, and together do not exceed the need for an independent Article III court (especially for federal crimes). Granted, federal courts review military commissions’ determinations as non-Article III doctrine requires. But this safeguard alone cannot cure the constitutional defects, especially where the federal courts’ review is not meaningful.
With both the original function and the original subject matter jurisdiction tweaked to advance political interests in the war against al Qaeda, the military commissions as permitted by the 2006 and 2009 MCA violate Article III. At the lowest Marbury ebb, the MCA is a masked attempt to punish future detainees for federal crimes without affording Article III guarantees, and, therefore, future convictions would require the Court to rubber-stamp unconstitutional legislative jurisdiction. At its highest ebb, the MCA may constitute an illegal delegation of Article III powers.
Thus, whether or not the Court feels competent to make “battlefield” decisions—which all agree that it does not—its primary competence is to decide jurisdictional questions that have implications on fundamental liberties and the Constitutional structure. That these matters are entirely left to Congress reflects not the Constitution but the “conclusory view of the Court itself.” Pushing the Court to resume either separation-of-powers role would require a reevaluation of its proper place in the United States’ entirely “separate” system of justice.
The Military Commission Act’s expansion of military commission jurisdiction beyond the law of war invalidates the very reason for its use. Because its jurisdictional preconditions were abandoned, the commission appears to function to achieve “outcome-determinative” results: to convict and detain alleged low- and mid-level terrorists who Congress fears, however speculatively, are dangerous. Worse, however, is that the federal courts continue to avoid addressing the matter head-on; instead, they too tie jurisdictional authority to statute alone.
But two longstanding constitutional principles are clear: the federal courts have always ruled on military commission jurisdiction, and they have always tethered the jurisdiction to the law of war. Thus, when al Bahlul again comes before the D.C. Circuit (and perhaps ultimately the Supreme Court), the court should hold the following: the military commission may try enemy combatants for violations of the law of war pursuant to precedent and constitutional structure—otherwise, a federal court must try them for federal offenses with proper procedural and constitutional guarantees.
The Supreme Court stands at a crucial time for determining the fate of military commission jurisdiction in the indefinite future. It must resume its proper and constitutional role in engaging in that discussion.
. John Fabian Witt, Lincoln’s Code: The Laws of War in American History 101 (2012) (quoting Congressman Cobb).
. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (Nov. 16, 2001) (authorizing any member of al-Qaeda or persons associated with international terrorism to “be tried for violations of the laws of war and other applicable laws by military tribunals”).
. See, for e.g., Press Release, Eric H. Holder, Jr., U.S. Att’y Gen., Statement of the Attorney General on the Prosecution of the 9/11 Conspirators (Apr. 4, 2011), available at http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-110404.html; Presidential Statement on Signing the Department of Defense and Full-Year Continuing Appropriations Act, 2011, 2011 Daily Comp. Pres. Doc. 263 (Apr. 15, 2011), available at http://www.gpo.gov/fdsys/pkg/DCPD-201100263/pdf/DCPD-201100263.pdf; Jane Mayer, The Trial: Eric Holder and the Battle over Khalid Sheikh Mohammed, New Yorker, Feb. 15, 2010, at 52, available at http://www.newyorker.com/reporting/2010/02/15/100215fa_fact _mayer.
. Rosa Brooks, Let Them Go, Foreign Policy, March 28, 2013, at 1 , available at www.foreignpolicy.com/articles/2013/03/28/let_them_go (“These costs include the distinct possibility that our continued detention of thousands of Afghans could inspire just as many new Taliban recruits”); David Espo, Senate Votes to Block Funds for Guantanamo Closure, Huffington Post, (May 20, 2009, 9:34 PM ) (“Guantanamo is used by al-Qaida as a symbol of American abuse of Muslims and is fanning the flames of anti-Americanism around the world,” said Sen. Dianne Feinstein of California).
. The law of war is commonly understood as the international law of war. See infra Part II.B.
. 10 U.S.C. § 948a-950t (2012) (codifying that military commissions can try any “unprivileged enemy belligerents” for “violations of the law of war and other offenses triable by military commission,” even though it expands what traditional law of war offenses include).
. While many of the crimes the MCA incorporates are arguably not violations of the law of war, for clarity and relevance sake this Note will focus on these two offenses.
. See, for e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-13 (2006), superseded by statute, Military Commissions Act of 2006, Pub.L. No. 109-366, 120 Stat. 2600 [hereinafter Hamdan I]; Hamdan v. United States, 696 F.3d 1238, 1248-53 (D.C. Cir. 2012) [hereinafter Hamdan II]. Even the government concedes that these offenses are not war crimes under the international law of war. See Hamdan II, 696 F.3d at 1241.
. Alan Rozenshtein, An Explainer on Hamdan II, Al-Bahlul, and the Jurisdiction of the Guantanamo Military Commissions, LAWFARE Blog, (Apr. 26, 2013, 10:30 AM), http://www.lawfareblog.com/2013/04/an-explainer-on-hamdan-ii-al-bahlul-and-the-jurisdiction-of-the-guantanamo-military-commissions/.
. Hamadan II, 696 F.3d at 1238.
. Hamdan II, 696 F.3d at 1241. The relevant pre-2006 statute on the books at the time was 10. U.S.C. § 821, which authorized military commission jurisdiction over “offenders or offenses that by statute or by the law of war may be triable by such military commissions.”
. 10 U.S.C. § 948a (authorizing jurisdiction over offenses that were “committed before, on, or after September 11, 2001”).
. Hamdan II, 696 F.3d at 1246.
. Order Granting En Banc Rehearing, al Bahlul v. United States, 2013 WL 297726 (No. 11-1324) (D.C. Cir. 2013) (April 23, 2013) [hereinafter Order Granting En Banc Rehearing].
. Id; see also Petition for Rehearing En Banc at 4-9, 11-13, al Bahlul, No. 11-1324 (arguing that the D.C. Circuit misconstrued the MCA and that the U.S. common law of war does permit military commission jurisdiction over conspiracy offenses).
. Some relevant exceptions are Stephen I. Vladeck, The Laws of War as a Constitutional Limit On Military Jurisdiction, 4 J. Nat’l Security L. & Pol’y 295, 299(2010) (tying commissions’ jurisdiction to 5th and 6th Amendment rights to trial by jury); Geoffrey Corn, Taking the Bitter With the Sweet: A Law of War Based Analysis of the Military Commissions, 35 Stetson L. Rev. 811, 814 (2006) (concluding that the Bush military commissions are inconsistent with the law of war, pre-MCA and pre-Hamdan I).
. See Hamdan II, 696 F.3d at 1246 n.6 (rejecting international law as an authoritative limit on Article I powers); cf. al-Bihani v. Obama, 590 F.3d 868-69 (D.C. Cir. 2010) (declining to rehear the case en banc to determine role of international law-of-war principles in interpreting the Authorization for Use of Military Force (AUMF) where not dispositive to the merits).
. Cf. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2094 (2005) (“Since the international laws of war can inform the powers that Congress has implicitly granted to the President in the AUMF, they logically can inform the boundaries of such powers.”).
. U.S. Const. art. I, § 8, cl. 10.
. U.S. Const. art. I § 8, cl. 18.
. U.S. Const. art. I, § 8, cl. 10.
. Hamdan I, 548 U.S. 557, 570 (2006). To emphasize, Hamdan did not possess any “command responsibilities, play a leadership role, or participat[e] in the planning of any activity” in the September 11 attacks.
. Id. at 566.
. Id. at 613.
. George P. Fletcher, Hamdan Confronts the Military Commissions Act of 2006, 45 Colum. J. of Transnat’l L. 427, 439-40) (2007). (This was the only time the Court “delved deeply into [the military commission] concept that has challenged our understanding for over two hundred years.”).
. Hamdan I, 548 U.S. at 596-97 (emphasis added).
. Id. at 598-613.
. Id. at 601-02.
. Id. at 602.
. 10 U.S.C. § 821 art. 21 (2006) (authorizing military commission jurisdiction over “offenders or offenses that by statute or by the law of war may be triable by military commissions”).
. Hamdan I, 548 U.S. at 691.
. 10 U.S.C. § 950(t)(25), (29).
. 10 U.S.C. § 948c.
. 10 U.S.C. § 948d.
. 10 U.S.C. § 950p(d) (2006).
. See supra text accompanying note 8.
. Supplemental Brief for Respondent at 3-4, al Bahlul, 2013 WL 297726 (No. 11-1324) (acknowledging that Congress’s stipulation “cannot be squared with the plain language of the 2006 MCA and Congress’s stated purpose in enacting it”).
. Exec. Order No. 13492, Review and Disposition of the Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities, 74 Fed. Reg. 4898 (Jan. 22, 2009).
. Created by Exec. Order No. 13493, Review of Detention Policy Options, 74 Fed. Reg. 4901 (Jan. 22, 2009).
. Memorandum from the Detention Policy Force, Brad Wiegman and Colonel Mark Martins, to the Attorney General and the Secretary of Defense 2 (July 20, 2009), available at https://www.fas.org/irp/agency/doj/detention072009.pdf.
. Id. at 4.
. Prosecuting Terrorists: Civilian and Military Trials for Guantanamo and Beyond: Before S. Subcomm. on Terrorism and Homeland Sec. of the S. Comm. on the Judiciary, 111th Cong. 123 (2009) (statement of David Kris, Assistant Att’y Gen.); see also Legal Issues Regarding Military Commisisons and the Trial of Detainees for Violations of the Law of War: Before S. Comm. on Armed Services, 111th Cong. 9 (2009) (Statement of Jeh Charles Johnson, Gen. Counsel, Dept. of Defense) (“After careful study, the administration has concluded that appellate courts may find that ‘material support for terrorism’—an offense that is also found in Title 18—is not a traditional violation of the law of war. The President has made clear that military commissions are for law of war offenses. We thus believe it would be best for material support to be removed from the list of offenses triable by military commission, which would fit better with the statute’s existing declarative statement.”).
. 10 U.S.C. § 950p(d) (2009) (“Because the provisions of this subchapter codify offenses that have traditionally been triable under the law of war or otherwise triable by military commission, this subchapter does not preclude trial for offenses that occurred before the date of the enactment of this subchapter[.]”) (emphasis added).
. Press Release, U.S. Dept. of Justice, Departments of Justice and Defense Announce Forum Decisions for Ten Guantanamo Detainees (Nov. 13, 2009), available at http://www.justice.gov/opa/pr/2009/November/09-ag-1224.html.
. Jennifer K. Elsea, Cong. Research Serv., R40932, Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court 3 (2013).
. United States v. Hamdan, 801 F. Supp. 2d 1247 (C.M.C.R. 2011) (en banc).
. United States v. al Bahlul, 820 F. Supp. 2d 1141 (C.M.C.R. 2011) (en banc).
. Id. at 1172.
. Of the seven convictions thus far by military commission, five have settled by plea bargain; al Bahlul and Hamdan are the only exceptions. By the Numbers, Miami Herald, http://www.miamiherald.com/2007/11/27/322461/by-the-numbers.html (last updated March 26, 2013).
. Hamdan II, 696 F.3d at 1241.
. Order to Vacate Petitioner’s Convictions by Military Commission, al Bahlul, 2013 WL 297726 (No. 11-1324).
. Lyle Denniston, New Plea on War Crimes Scope, SCOTUSblog (Mar. 6, 2013, 12:03 AM), http://www.scotusblog.com/2013/03/new-plea-on-war-crimes-scope.
. See supra Part I. C.
. Hamdan II, 696 F.3d at 1241 (holding that the 2006 MCA did not “authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred”).
. See 10 U.S.C. § 950p(d) (2009) and § 950p(a)-(b) (2006).
. Hamdan II, 696 F.3d at 1247-48 (emphasis in original).
. Petition for Rehearing En Banc at 4-5 al Bahlul, 2013 WL 297726 (No. 11-1324) (“Both the express terms of the statute and its history make clear that Congress intended to authorize prosecution of these [common law] offenses for conduct committed before 2006 . . . . This inversion of Congress’s finding [that Congress was not creating new war crimes] . . . is inconsistent with the statutory text.”); see also H.R. Rep. No. 109-664, Pt. 1, at 25 (2005) (stating that “the committee firmly believes that trial for crimes that occurred before the date of the enactment of this chapter” is permissible).
. Order Granting En Banc Rehearing, al Bahlul, 2013 WL 297726 (No. 11-1324). The Court ordered the parties to respond to two questions: (1) If the MCA does apply to pre-2006 conduct, then does the Ex Post Facto Clause still cover the Guantanamo detainees? (2) If the MCA does not apply to pre-2006 conduct, and therefore 10 U.S.C. § 821 applies, then was conspiracy a violation of the international law of war at the time of the offense? Id. Some speculate that the full court is thinking about holding the law may be more restrictive than it did in Hamdan II. Wells Bennett & Benjamin Wittes, Breaking News: D.C. Circuit Grants En Banc Rehearing in Al-Bahul, LAWFARE Blog, April 23, 2013, http://www.lawfareblog.com /2013/04/breaking -news-d-c-circuit-grants-en-banc-rehearing-granted-in-al-bahlul/.
. Hamdan II, 696 F.3d at 1248.
. Id. at 1253.
. Id. at 1246 (arguing that “Congress’s authority under the Define and Punish Clause is limited to proscribing offenses that are already illegal under international law”).
. Id. Al Bahlul’s response to the government’s petition for en banc rehearing acknowledged these narrow grounds: “Instead of pronouncing broadly foundational questions about the rule of law, this Court decided both cases [Hamdan II and al Bahlul] by applying over seventy years of settled law to facts.” [Response to Petition for Rehearing En Banc at 3, al Bahlul, 2013 WL 297726 (No. 11-1324) [hereinafter Response to Petition for Rehearing En Banc].
. Hamdan II, 696 F.3d at 1246 n.6. Judge Kavanaugh also argued that Congress has made non-law-of-war violations—i.e., spying and aiding the enemy—triable by military commission previously. Id. This is actually incorrect. See infra Part II.E.
. Petition for Rehearing En Banc at 2, al Bahlul, 2013 WL 297726 (No. 11-1324); see Jennifer K. Elsea, Cong. Research Serv., R41163, The Military Commission Act of 2009: Overview and Legal Issues 10-11 (2010); see also Shane Kadidal, The Government is Using al Bahlul v. US to Maintain the Political Status Quo, Jurist Hotline, Mar. 21, 2013, http://jurist.org/hotline/2013/03/shane-kadidal-guantanamo-bahlul.php (“The impact of the decisions in Hamdan II and al Bahlul, should they stand, will be great: according to my informal count, material support or conspiracy have been included as charges in 28 of the 30 charge sheets filed in the military commissions since the MCA passed.”).
. See Kadidal, supra note 66(“Remove those generic offenses and it becomes increasingly difficult for the relatively non-culpable mass of detainees, not cleared for release by the Obama administration, to find something plausible to plead guilty to. Without something to plead guilty to, these detainees will simply sit indefinitely in detention, as it has become practically impossible to win release through habeas corpus.”). Despite this trend, it does not follow that the rule of law governing commission’s jurisdiction should be ignored.
. Rozenshtein, supra note 9.
. Kadidal, supra note 66. Further, the political branches may opt into trial by military commission on a “case-by-case basis,” which is established on questionable and unclear legal criteria; the same goes for the level of due process afforded to the defendants. See Janet C. Alexander, Military Commissions: A Place Outside the Law’s Reach, 56 St. Louis U. L.J. 1147-48 (2012) (concluding that “[s]uch a system is completely contrary to the rule of law”). Often, these decisions turn on when it is most convenient for the government, i.e., whether the government has sufficient evidence to convict in federal court or not.
. Vladeck, supra note 16, at 298-99 n.22. In the past, the Supreme Court even disclaimed itself from creating bright-light rules for military commission jurisdiction. Ex Parte Quirin, 317 U.S. 1, 45-46 (1942) (“We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war.”).
. See Order Granting En Banc Rehearing, supra note 60 (Question 1).
. Id. (Question 2).
. As I argue, there is no such thing as a U.S. common law of war, see infra Part II.B; secondly, conspiracy has never before been tried by a military commission, see infra Part II.E(3).
. Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of Military Governance In a Madisonian Democracy, 70 Geo. Wash. L. Rev. 649, 768 (2002).
. Al-Bihani v. Obama, 590 F.3d 866, 882 (D.C. Cir. 2010) (Brown, J., concurring), reh’g denied en banc, 619 F.3d 1 (D.C. Cir. 2010), cert. denied, 131 S.Ct. 1814 (2011).
. Harold L. Kaplan, Constitutional Limitation on Military Commissions, 92 U. Penn. L. Rev. 272, 272 (1944) (citation omitted).
. Hamdan II, 696 F.3d at 1245; see also Hamdan I, 548 U.S. at 603; Ex parte Quirin, 317 U.S. 1, 27-30, 35-36 (1942); Response to Petition for Rehearing En Banc, supra note 66, at 4 (“The government offers no reason to believe that the full court, or any court, is likely to accept this argument. This Court’s rejection of the ‘U.S. law of war’ was concise and unanimous.”).
. Alexander, supra note 69, at 1143.
. Ex parte Quirin, 317 U.S. at 28 (“Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are defined as such by the law of war….”). Id. at 30. Despite a modern rejection of natural law, the Constitution did contemplate that there was a “law of nations;” incorporating the international law of war is what the framers perceived they were doing.
. U.S. Dep’t of Army, Field Manual 27-10, The Law of Land Warfare sect. III para. 505(e) (1956).
. Order Granting En Banc Rehearing, supra note 14.
. Neither conspiracy nor material support are acknowledged in international treaties.
. Restatement (Third) Of Foreign Relations Law Of The United States § 102(2) (1987).
. Turley, supra note 74, at 719-20.
. Alexander, supra note 69, at 1118.
. Bradley & Goldsmith, supra note 18, at 2132; Hamdan I, 548 U.S. at 595-96 (“First, they have substituted for civilian courts at times and in places where martial law has been declared . . . . Second, commissions have been established to try civilians ‘as part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function.’” (citation omitted)); W. Winthrop, Military Law and Precedents 822, 836-41 (2d ed. 1920). On the other hand, some scholars argue that the distinction is not as clear as this three-part framework. While this may be true, of course, the formal (and, I contend, constitutional) distinction exists. It has been approved by a plurality of the Supreme Court.
. John M. Bickers, Military Commissions Are Constitutionally Sound: A Response to Professors Katyal and Tribe, 34 Tex. Tech. L. Rev. 899, 902 (2003). This means that certain precedents, e.g., Ex parte Milligan, 71 U.S. 2, 121 (1866) (declaring unconstitutional a citizen’s trial by military commission where civilian courts were still operating), are actually not here relevant. The Civil War commissions were appropriately used because military law was established in the south; this is why the military commissions in the north (where civilian courts were open) were held unconstitutional.
. Ex parte Quirin, 317 U.S. at 28-29; Yamashitav. Styer, 327 U.S. 1, 11 (1946) (“An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war.”).
. Hamdan I, 548 U.S. at 596(quoting Ex parte Quirin, 317 U.S. at 28-29).
. Id. at 597.
. Guantanamo Bay Naval Base is occupied under treaty rights, not military law.
. Bickers, supra note 87, at 912.
. Id. at 908-09. First, General Washington tried a captured British spy during the American Revolution before a “Board of Officers.” Second, when necessity required during the Mexican-American War, military officials were permitted to try Mexican guerrillas before “Councils of War” according to the “known laws of war.” Witt, supra note 1, at 126.
. Gideon M. Hart, Military Commissions and the Lieber Code: Toward a New Understanding of the Jurisdictional Foundations of Military Commissions, 203 Mil. L. Rev. 1, 32 (2010) (citing Louis Fisher, Military Tribunals And Presidential Power 33 (2005)).
. David Glazier, Precedents Lost: The Neglected History of the Military Commission, 46 Va. J. Int’l L. 5, 41 (2005).
. War Dept., General Order No. 100 (Apr. 24, 1863) [hereinafter Lieber Code], in Richard Shelly Hartigan, Lieber’s Code and the Law of War 45-71 (1983).
. See Hart, supra note 94, at 36-38.
. Id. at 3. Some scholars note that such an extension of jurisdiction was problematic—and that even formal authority to try violations of the law of war was an extension of what was currently being practiced. See id. at 68-69 (arguing that the Lieber Code expanded military commission jurisdiction over violations of the law of war, which was before restricted to violations of military orders or crimes committed by American soldiers).
. Corn, supra note 16, at 814.
. Id. at 823 (emphasis added).
. See infra Part II.E.
. See infra Part II.E.
. Hamdan I, 548 U.S. at 590. The Constitutional authority for the commissions is discussed below.
. David Glazier, Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission, 89 Va. L. Rev. 2005, 2010 (2003).
. Fletcher, supra note 25, at 435 (“Whenever and wherever they may have originated, the tribunals functioned until 1916 as institutions of military common law—without mention in the federal statutes”).
. Act of Aug. 29, 1916, An Act Making appropriations for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes, ch. 418, art. 12, 39 Stat. 619, 652 (1917) (emphasis added).
. Captain Brian C. Baldrate, The Supreme Court’s Role in Defining the Jurisdiction of Military Tribunals: A Study, Critique, & Proposal for Hamdan v. Rumsfeld, 186 Mil. L. Rev.1, 50 (2005).
. Act of Aug. 29, supra note 104, at 653. Article 15 is also identical to later text codified 10 U.S.C. section 821 in 1950, after World War II.
. I do not argue that the authority to establish military commissions’ jurisdiction rests in the President’s inherent power. I do argue, however, that military commissions try violations of the law of war, and therefore bring in the law of war.
. Kaplan, supra note 76, at 272 (“For the great mass of offenses which are not covered by or provided for in the Articles of War and which might be referred to the military commission, we must look to the law of war.”).
. See Hamdan I, 548 U.S at 601-02.
. Ex parte Quirin, 317 U.S. at 1.
. Id. at 28 (emphasis added).
. Yamashita v Styer, 327 U.S. 1, 11 (1946) (emphasis added); see also id. at 10 (holding that the commissions were an “appropriate tribunal for the trial and punishment of offenses against the law of war”); Id. at 9. (confirming that the commissions possessed jurisdiction “only to try the purported charge of violation of the law of war committed by petitioner”).
. Ex parte Quirin, 317 at 45-46 (“We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war”).
. Response to Petition for Rehearing En Banc, supra note 64, at 5: (“The government is therefore asking this Court to convene en banc so that it can rehear an argument that is so at odds with settled law and so lacking in textual support that it has been rejected, in one form or another, by every judge to consider it.”).
. See generally Winthrop, supra note 86. The government agrees these describe accurately the law governing the commissions. Hamdan I, 548 U.S. at 598.
. Corn, supra note 16, at 814.
. See Hamdan I, 548 U.S. at 590 (finding that the military commissions were “born of military necessity”).
. Hart, supra note 92, at 15-17.
. Ex parte Quirin, 317 U.S. at 28-29.
. S.Rep. No. 130, 64th Cong., 1st Sess., 40 (1916).
. Hamdan I, 548 U.S. at 607.
. Winthrop, supra note 84, at 836; see also Madsen v. Kinsella, 343 U.S. 341, 346 (1952) (“[s]ince our nation’s earliest days, such commissions have been constitutionally recognized agencies for meeting many urgent governmental responsibilities related to war.”).
. Kaplan, supra note 76, at 273.
. Witt, supra note 1, at 100.
. Glazier, supra note 93, at 30.
. Ex parte Milligan, 71 U.S. at 140.
. See Winthrop, supra note 84, at 838 (stating that military commissions are permitted to try only “[i]ndividuals of the enemy’s army who have been guilty of illegitimate warfare or other offences in violation of the laws of war”).
. Witt, supra note 1, at 114. But this was not always the traditional understanding. William Blackstone wrote that when an individual violated the laws of nations, “it was the obligation of the violator’s own government to see to it that he was punished.” Id. at 128. Rather than criminal punishment, diplomacy and retaliation was the mechanism for responding to such violations.
. Corn, supra note 16, at 836.
. I.e., combatants not entitled to ordinary prisoner-of-war protections or immunities.
. In the U.S. war against terror, there are no “privileged” belligerents, not even Omar Khadr, who used a grenade to kill a soldier on the ground in Afghanistan. Alexander, supra note 69, at 1144-45 (concluding that only one Guantanamo detainee—Abd al-Rahim al Nashiri, who attacked the U.S.S. Cole in 2000—had been charged with an actual violation of the law of war).
. Hamdan I, 548 U.S. at 597-600 (considering time and place deficiencies).
. Order Granting En Banc Rehearing, supra note 14.
. Hamdan II, 696 F.3d at 1251; Hamdan I, 548 U.S., at 604 & n.35 (finding that the 19th-Century trial of the “Lincoln Conspirators” was not an exception because they were charged with Lincoln’s assassination).
. Turley, supra note 74, at 692.
. Bickers, supra note 87, at 922-23.
. Winthrop, supra note 84, at 841.
. Hart, supra note 94, at 17.
. It is telling that the conspiracy charge was treated separately from the other clearly defined war crimes the saboteurs committed. Ex parte Quirin, 317 U.S. 1.
. Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
. Id.; see also (“[W]e think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”); Hamdan II, 696 F.3d 1238, 1250 n.6 (2012) (Kavanaugh, J., concurring) (“Therefore, as the Supreme Court required in an analogous context in Sosa, and as the plurality suggested in Hamdan, 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.”). Id. at 1251 n. 10.
. Quirin 317 U.S. at 30, 38 (“The offense was complete when with that purpose they entered—or, having so entered, they remained upon—our territory in time of war without uniform or other appropriate means of identification.”); see id. at 35–36 (“This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.”); see also Hamdan I, 548 U.S. at 606 (finding that “[i]f anything, Quirin supports Hamdan’s argument that conspiracy is not a violation of the law of war”).
. Hamdan I, 548 U.S. at 597.
. For conspiracy, see id. at 603-13; see also Winthrop, supra note 84, at 839-40 (excluding conspiracy from his list of offenses in violation of the law of war). For material support of terrorism, See Hamdan II, 696 F.3d at 1248-53 (concluding that “[i]n short, neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime”); see also Statement of David Kris, supra note 42.
. See Hamdan II, 696, F.3d at n.6.
. Transcript of Oral Argument at 23-25, Hamdan I, 548 U.S. 557 (No. 05-184), available at http:// www.supremecourtus.gov/oral_ arguments/argument_transcripts/05-184.pdf.
. Elsea, supra note 67, at 14.
. Hamdan was not charged with aiding and abetting, arguably, because the government did not have proof for this higher level of culpability. See Hamdan II, 696 F.3d at 1251-52.
. Fletcher, supra note 25, at 446.
. Witt, supra note 1, at 127.
. Id. at 25.
. Elsea, supra note 67, at 7 (citing Fact Sheet, Statistics on Unsealed International Terrorism and Terrorism-Related Convictions, Dept. of Justice). Although the Fact Sheet was originally posted on the Department of Justice’s website, it no longer appears to be available. See also Fact Sheet: Trying Terror Suspects in Federal Courts, Human Rights First (last accessed April, 2013) available at http://www.humanrightsfirst.org/wpcontent/uploads/pdf/ USLS-Fact-Sheet-Courts.pdf (finding that federal criminal courts have convicted nearly 500 individuals on terrorism-related charges since 9/11 from the same disappeared fact sheet).
. See, e.g., Ex parte Milligan, 71 U.S. 2.
. Memorandum from the Detention Policy Task Force, supra note 41, at 3 (“The principal factors that make military commissions a distinct and appropriate forum lie in the military character of the proceedings and the nature of the offenses subject to their jurisdiction (i.e. [sic] violations of the law of war).”).
. Corn, supra note 16, at 822-23.
. Vladeck, supra note 16, at 300.
. Id. at 317-18 (“[T]he rights to grand jury indictment and trial by petit jury . . . included a categorical exception for ‘offenses committed by enemy belligerents against the law of war’”) (quoting ex Part Quirin, 317 U.S. 1 (1942)).
. James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. l. rev. 643, 758 (2004).
. Id. at n.540.
. Charlie Savage, Who Decides the Laws of War?, N.Y. Times, January 26, 2013.
. Charlie Savage, U.S. to Press Fight of Detainee’s Appeal, N.Y. Times, Jan. 9, 2013.
. Hamdan I, 548 U.S. at 567.
. Id. at 591 (determining what would “justify the establishment and use of penal tribunals not contemplated by Article I, § 8, and Article III, § 1, of the Constitution unless some other part of that document authorizes a response to the felt need”).
. Reid v. Covert, 354 U.S. 1, 23-24 (1957); see Ex parte Quirin, 317 U.S. 1, 29 (1942) (“We must therefore first inquire whether any of the acts charged is an offense against the law of war cognizable before a military tribunal, and if so whether the Constitution prohibits the trial. We may assume that there are acts regarded in other countries, or by some writers on international law, as offenses against the law of war which would not be triable by military tribunal here, either because they are not recognized by our courts as violations of the law of war or because they are of that class of offenses constitutionally triable only by a jury.”).
. Memorandum from the Detention Policy Task Force, supra note 41 at 3.
. Turley, supra note 74, at 665.
. Winthrop, supra note 86, at 49.
. Id. at 831.
. Vladeck, supra note 16, at 301.
. Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L. J. 1259, 1270 (2002).
. Turley, supra note 74, at 766.
. Savage, supra note 164.
. Rozenshtein, supra note 9.
. See Hamdan I, 548 U.S. at 645 (“Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them.”).
. The extent of this power has been widely debated. The general consensus is that Congress may legislate on the margins, if at all, beyond “describ[ing]” the international law of war.
. U.S. Const. art. I, § 8, cl. 9.
. Vladeck, supra note 16, at 298 & n.22 (finding that the Court had no occasion to reach the question of imposing stricter limits than the law of war proscribed before 2006, when Congress enacted the MCA).
. Military Commissions, 11 Op. Att’y Gen 297, 300-01 (1865).
. Winthrop, supra note 86, at 50.
. Ex parte Milligan, 71 U.S. at 2.
. Turley, supra note 74, at 690 (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)).
. Id. at 682. (Even “[d]eference to the military . . . masks a more active role in shaping [the military justice] system.”)
. See generally Ex parte McCardle, 74 U.S. 506 (1868).
. See Ex parte Milligan, 71 U.S. 2; Ex parte Quirin, 317 U.S. 1; United States v. Grimley, 137 U.S. 147, 150 (1890) (for the first 150 years of American history, federal court review of military courts was predicated on “the single inquiry, the test [for] jurisdiction.”).
. Marbury v. Madison, 5 U.S. 137, 138 (1803).
. Baldrate, supra note 107, at 4-5.
. Ex parte Milligan, 71 U.S. at 136.
. Hamdan I, 548 U.S. at 655.
. In 2011, Attorney General Eric Holder, defended the use of civilian trials rather than military commissions: “So long as I am privileged to serve as Attorney General, I will defend the exclusive right of the Executive Branch to determine appropriate venues and mechanisms for all criminal trials. And I will continue to point out one indisputable fact, which has been proven repeatedly, during this Administration and the previous one: in disrupting potential attacks and effectively interrogating, prosecuting, and incarcerating terrorists—there is, quite simply, no more powerful tool than our civilian court system.” Eric Holder, Att’y Gen., Speech at the American Constitution Society Convention (June 16, 2011), available at http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-1106161.html.
. The Federalist No. 51 (Alexander Hamilton or James Madison).
. Turley, supra note 74, at 767.
. Savage, supra note 164.
. Korematsu v. United States, 323 U.S. 214 (1944).
. Turley, supra note 74, at 767.
. Geoffrey S. Corn, Questioning the Jurisdictional Moorings of the Military Commissions Act, 43 Tex. Int’l L.J. 1, 35 (2007).
. Id. at 36.
. Jim Garmone, Holder Refers 9/11 Co-Conspirators to Military Tribunal, Dept. of Defense Press Release, Apr. 4, 2011 (reporting that Holder said Congress “t[ook] the decision from his hands”), available at http://www.defense.gov/news/newsarticle.aspx?id=63424.
. Savage, supra note 164.
. In fact, the United States has been a critic of other countries when they used fora other than regularly constituted civilian courts for conducting trials, even for suspected terrorists. In the last decade, the U.S. has criticized Burma, China, Colombia, Egypt, Kyrgyzstan, Malaysia, Nigeria, Peru, Russia, Sudan, and Turkey for this practice. See Fact Sheet: Past U.S. Criticism of Military Tribunals, Human Rights Watch (Nov. 28, 2001), available at http://www.hrw.org/news/2001/11/28/fact-sheet-past-us-criticism-military-tribunals (on file with the Virginia Law Review Association); see also Savage, supra note 162 (“But how the United States handles these cases is going to influence how other countries in future wars treat captured Americans.”).
. Robert Chesney, A New Al Qaeda Prosecution in New York, LAWFARE Blog, (Mar. 20, 2013), http://www.lawfareblog.com/2013/03/a-new-al-qaeda-prosecution-in-new-york.
. Chris Good, A Hamstrung Eric Holder Blasts Critics of Civilian Trials, The Atlantic, Apr. 4, 2011; see also Paige Lavender, Eric Holder Defends Civilian Trials for Terrorists, Huff. Post (June 16, 2011, 9:54PM), http://www.huffingtonpost.com/2011/06/16/eric-holder-civilian-trials-terrorism_n_878750 .html.
. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986).
. Northern Pipeline Construction Co., 458 U.S. at 66.
. See supra note 134 and accompanying text.
. See supra note 69 and accompanying text.
. Turley, supra note 72 at 768.
. See Commodity Futures Trading Comm’n, 478 U.S. 833 .
. See supra Part I. C.
. Turley, supra note 74, at 687.