Basic category error by ten members of the Senate Judiciary Committee

Last Tuesday, AG-Designate Loretta Lynch, in her capacity as U.S. Attorney for the Eastern District of New York, announced the unsealing of a complaint and arrest warrant that had been filed almost six years ago, on April 15, 2009, charging Saddiq Al-Abbadi and Alvi with conspiracy to murder United States nationals abroad and providing material support to al-Qaeda.  The complaint alleges that Al-Abbadi and Alvi engaged in attacks against United States military forces stationed in Afghanistan between 2003 and 2008 on behalf of al Qaeda (and in Alvi’s case, briefly in 2008 on behalf of the Taliban, too), and that Al-Abbadi also fought as a member of al Qaeda against United States military forces in Iraq.

According to the announcement, “Al-Abbadi and Alvi were arrested in Saudi Arabia pursuant to the pending warrants in this case and lawfully expelled to the United States.”

The DOJ announcement prompted a letter to Attorney General Holder from ten of the eleven members of the Senate Judiciary Committee majority (all except Sen. Flake).  Most of the letter consists of questions about why the two criminal defendants were not transferred to U.S. custody earlier.  The ten Senators also say this, however, about the Executive’s choice of forum for trying the defendants:

“[W]e continue to have concerns with this Administration’s reluctance to use military commissions to prosecute foreign terrorists who were involved in attacks against U.S. military forces in Afghanistan and Iraq.”

This betrays a basic misunderstanding of the law.  Certain individuals can, indeed, be tried in military commissions for what the Military Commissions Act calls “murder in violation of the law of war”–but there is no basis for assuming that Al-Abbadi’s and Alvi’s attacks on U.S. forces violated the law of war, even where (as alleged to have happened in at least one case) they resulted in the death of U.S. military personnel.  Attacking and killing U.S. military forces in an armed conflict does not, without more, violate the law of war, even when undertaken by nonstate enemy forces such as al Qaeda.  (Such a killing could violate the law of war if it were done, e.g., perfidiously, or against captured prisoners; but there are no such allegations in the complaint here.)

To be sure, and as I’ve explained previously, such nonstate actors are not entitled to the combatant’s privilege, and therefore–unlike a nation state’s armed forces–their attacks on U.S. forces make them culpable, and eligible to be tried, for violations of domestic law.  Which is exactly what’s happened here:  Al-Abbadi and Alvi are being tried principally under 18 U.S.C. 2332(b)(2), which makes it unlawful to conspire to kill U.S. nationals outside the United States.  That’s an offense that can be tried in an Article III court, but not in a military commission (both because the Military Commissions Act does not recognize that offense and because prosecution of such a domestic law offense in a military tribunal would likely be unconstitutional even if Congress had authorized it).

Wholly apart from the allegations that Al-Abbadi and Alvi attacked U.S. forces, the complaint also alleges that the two defendants provided material support to al Qaeda, in the form of their alleged efforts to integrate a “confidential witness” into that terrorist organization.  Such material support to al Qaeda is an offense under the Military Commissions Act; and, in his separate opinion in al Bahlul v. United States, Judge Kavanaugh has suggested that it constitutionally may be charged in a military tribunal if the conduct occurred (as it did here) after Congress enacted that law in 2006.  Nevertheless, as Steve Vladeck and I have explained at length, that proposition is subject to serious constitutional doubts–doubts that would cast a dark cloud over any such military prosecution.  (It is notable, in this respect, that in the 9/11 case in the Commissions, the Chief Prosecutor has dropped all charges that raise this constitutional question, leaving the case focused only on conduct that undoubtedly did violate the law of war, namely, the al Qaeda attack on civilians.)  In any event, the fact that the more serious conspiracy-to-murder charges could only be brought against Al-Abbadi and Alvi in an Article III court presumably would have been a serious deterrent to bringing material support charges in a military tribunal.

Accordingly, from all that appears, there should have been no serious legal question within the Executive branch about where these two defendants would be tried–namely, in the only place they could be tried, an Article III court.

[UPDATE:  The ten Republican Senators are, however, correct about one thing, even if it does not affect this particular case:  If and when the U.S. comes into custody of al Qaeda forces who have violated the law of war, the Executive will try them in an Article III court, too, even if the law would allow trial in a military tribunal.  Why?  Because neither this nor any future President is going to increase the population at Guantanamo, something that would make matters even worse for U.S. foreign relations than the GTMO legacy does already.  And as long as the statutory restrictions are in place that prevent moving GTMO detainees to the U.S. for trial, the Executive is not about to expend the resources that would be necessary to establish military commissions in the United States.  Therefore, if Senators Graham, Grassley, et al. truly wish to ensure that military commissions are seriously considered for the trial of future captured al Qaeda members who have violated the law of war, there is something they can do to make that a more realistic possibility–namely, vote to lift the current restriction on transferring GTMO detainees to the U.S.] 

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Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).