Colonel Shane Cohen, the third military judge to preside over the 9/11 military commission at Guantanamo, left the bench on April 24, but not before compounding the tribunal’s erroneous approach to whether and when violence between the United States and al Qaeda rose to the level of an armed conflict. This “hostilities question” is the lynchpin of the military commission’s personal and subject-matter jurisdiction, and it forms an element of each offense triable by military commission. Simply put, without a determination that the United States and al Qaeda engaged in an armed conflict on or before September 11, 2001, the military commission could neither try nor convict the defendants in the United States v. Mohammad et. al. case.

Shortly before leaving the bench, Colonel Cohen completed a three-year evolution, involving both of his predecessors, resolving that the hostilities question is simultaneously a non-justiciable political question for pre-trial purposes and a mixed question of fact and law, subject to the Tadić standard, to be determined at trial.

The military commission’s dichotomous approach to the hostilities has the benefit of being jurisdiction preserving. It defers the fact-intensive inquiry into whether and at what point the armed violence between the United States and al Qaeda was sufficiently intense, and al Qaeda sufficiently organized, to constitute a non-international armed conflict. But the military commission’s approach is also fundamentally incoherent and incorrect in law. And, in preserving its own jurisdiction, the tribunal has elected to pick-and-choose among political acts, ignoring contrary political acts that cut against its jurisdiction, and worryingly settling on one so late in time—so divorced from contemporaneous legal consequences that give acts jure belli significance in the first place—that it smacks of revisionism and injustice.

Who Cares about Armed Conflicts?

It is easy to lose sight of the fact that the military commissions at Guantanamo Bay are war-time tribunals, established to adjudicate violations of the laws of war. The military commissions’ personal and subject-matter jurisdiction—and the culpability of the defendants—all turn on the question of whether and when “hostilities” existed between the United States and al Qaeda. The 2009 Military Commissions Act (MCA) defines “hostilities” as “any conflict subject to the laws of war.” In other words, “hostilities” under the 2009 MCA and “armed conflict” are identical terms. In the 9/11 case, the defendants are alleged to be members of al Qaeda, a non-state armed group; so, for purposes of that case, “armed conflict” necessarily means “non-international armed conflict.”

So, the question of whether or when the United States and al Qaeda engaged in a non-international armed conflict is of at least threshold importance to all the Guantanamo military commission cases. In the 9/11 case, as in the U.S.S. Cole case, the hostilities question takes on especial significance because the defendants’ alleged conduct took place before the United States invaded Afghanistan on October 7, 2001 and before the terrorist acts of September 11, 2001. Thus, to convict the defendants at trial, the prosecution must prove beyond a reasonable doubt both that the United States and al Qaeda were engaged in a non-international armed conflict and that the defendants’ conduct took place in “the context of and associated with” that armed conflict. Consequently, the prosecution has implausibly argued that the U.S.-al Qaeda armed conflict began with bin Laden’s “declaration of war” on August 23, 1996 or no later than when the United States briefly bombarded supposedly al-Qaeda-associated targets on August 20, 1998.

Through a series of decisions on personal jurisdiction beginning in 2017 and culminating in the AE502UUUU Ruling on March 25 of this year, the 9/11 military commission has resolved that the hostilities question is both (1) a non-justiciable political question for purposes of personal jurisdiction; and (2) a question of fact to be resolved by the panel (a sort of jury) at trial under the Tadić standard in light of evidence adduced at trial for purposes of subject-matter jurisdiction and culpability. The Tadić standard, developed by the International Criminal Tribunal for the former Yugoslavia, established a fact-intensive, two-pronged analysis of (a) the intensity of a conflict and (b) the organization of the parties to determine whether there existed protracted, organized armed violence sufficient to constitute a non-international armed conflict (see para. 70, here). The military commission’s inconsistent position relies on a misperception, at odds with law of armed conflict jurisprudence, that courts are incompetent to assess the existence or not of an armed conflict.

How the 9/11 Military Commission Got into this Mess

The 9/11 military commission’s decision in AE502UUUU that the existence of an armed conflict, for purposes of personal jurisdiction, is a non-justiciable political question represents the last stop of a confusing, three-year journey. In 2017, defendants Mustafa al Hawsawi and Ammar al Baluchi both challenged the military commission’s personal jurisdiction, arguing that the United States and al Qaeda were not engaged in an armed conflict prior to 9/11. In the wake of the Court of Military Commission Review’s interlocutory appellate decision in the Nashiri case, the military commission determined that the hostilities-based personal jurisdiction challenge must be resolved before trial and ordered an evidentiary hearing to do so. (See Marty Lederman and Steve Vladeck’s Just Security article for a discussion of the history of the Nashiri decision and its treatment of subject-matter jurisdiction.)

Despite the similarity of their ultimate arguments, Mr. Hawsawi and Mr. al Baluchi took very different approaches. Whereas Mr. Hawsawi argued, essentially, the absence of an armed conflict as a matter of law, Mr. al Baluchi intended to take a fact-based approach to demonstrating the absence of an armed conflict prior to the United States’ invasion of Afghanistan on 7 October 2001. Based on the difference in their approaches, Mr. Hawsawi and Mr. al Baluchi produced markedly different witness lists—Mr. Hawsawi sought examination of a single expert witness; Mr. al Baluchi sought examination of more than 100 fact witnesses. As a result, the military commission bifurcated the evidentiary hearing, taking testimony with respect to Mr. Hawsawi in December 2017 but reserving proceedings with respect to Mr. al Baluchi. For its part, the prosecution put on two FBI agent witnesses in an effort to satisfy a fact-based, Tadić-like standard for the existence of hostilities based on the panel instructions from the 2008 Hamdan military commission.

In April 2018, the military commission (Military Judge Pohl, presiding) denied Mr. Hawsawi’s motion. In its ruling, the tribunal determined Congress’ use of the term “laws of war” in the 2009 Military Commissions Act to be ambiguous. Based on that supposed ambiguity, the military commission resorted to the Act’s legislative history and found that, because Congress intended that the 9/11 defendants be tried by military commission, the military commission must have personal jurisdiction over the defendants. Thus, whatever the meaning of “hostilities,” it could not preclude the existence of an armed conflict between the United States and al Qaeda prior to September 11. Moreover, the military commission determined that it owes “great deference” to the political branches’ repeated determinations that an armed conflict between the United States and al Qaeda exists presently.

In March 2019, as a result of a series of motions-to-compel hostilities-related discovery, the military commission (Military Judge Parrella, presiding) ordered briefing on whether the existence of hostilities, as a requisite common element of each crime under the Military Commissions Act, is a non-justiciable political question. All parties agreed that the existence of hostilities, as a common element of each crime under the Military Commissions Act, is not a non-justiciable political question. The military commission also adopted the Tadić test as the standard by which to determine the existence of hostilities in the course of the 9/11 trial and it suggested that the panel instructions from the Hamdan and Bahlul military commissions are faithful interpretations thereof. (It is worth noting that, at this juncture—and contrary to its previous ruling—the military commission found no ambiguity in the meaning of the “laws of war” as used in the Military Commissions Act.)

In April 2019, the military commission extended its personal jurisdiction determination respecting Mr. Hawsawi to the other four defendants. At that time, the military commission held that the 2009 Military Commissions Act itself represents a determination by the political branches that an armed conflict existed between the United States and al Qaeda “for some time before” 9/11, and that the tribunal owes “great deference” to the political branches’ in their foreign policy and national security decision making.

Mr. al Baluchi, who was never allowed to present his fact-based case demonstrating the absence of pre-9/11 hostilities, moved for reconsideration. But, in AE502UUUU, the military commission denied his request and ruled that, rather than merely owing great deference to political branch determinations, the military commission lacks competence to resolve the question of hostilities because—for personal jurisdiction purposes alone—it is a non-justiciable political question.

What’s Wrong with Deference?

The military commission’s deference to the political branches as to the existence of an armed conflict between the United States and al Qaeda is incoherent, incorrect in law, and unsupported by the history of American political acts vis-à-vis al Qaeda.

First, there is an inherent tension in the military commission’s position that the existence-of-hostilities question is a political question for personal-jurisdiction purposes but a question of fact for merits purposes. The discordance in these two approaches to the same question, within the same trial, is underscored by the military commission’s repeated adoption of the Tadić test for determining the existence of hostilities and its elaboration of that test in the form of panel instructions. Not only has the military commission repeatedly identified a judicially cognizable standard for determining whether and when hostilities between the United States and al Qaeda existed, it has done so within the very same decisions in which it decided that, for personal jurisdiction alone, the question is judicially unresolvable.

Second, American law does not require courts to defer to political branch determinations as to the existence of an armed conflict.

As an initial matter, the Constitution assigns to the political branches the responsibility of waging war and deciding whether the United States should go to or end a war by treaty, as a policy matter. The Constitution does not assign to the political branches the exclusive responsibility of determining whether or when a war or armed conflict exists. In one way or another, throughout American history, courts have been called on to assess the existence or not of an armed conflict and U.S. courts have not shrunk from this responsibility. In making those determinations, courts have looked to political acts as evidence of the existence of an armed conflict just as they have looked to tangible or objective indicia of war. In some circumstances, contemporaneous political acts, supported by tangible facts, have provided conclusive evidence of the existence of a war. But it has not been the practice of American courts to accept belated political acts as the definitive answer on the earlier existence of a war or armed conflict.

Of course, U.S. courts accord the political branches wide deference in their conduct of foreign relations but, as Justice Brennan observed, writing for the majority in Baker v. Carr, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” In Baker, the Supreme Court’s seminal political question doctrine case, the Court, quoting from Coleman v. Miller, explained that “‘In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.’” The Baker Court specifically identified the “date or duration of hostilities” as a category of question that does not necessarily escape judicial review.

In reviewing earlier episodes in which it avoided making determinations as to the date or duration of hostilities, the Court in Baker identified “isolable reasons for the presence of political questions, underlying this Court’s refusal to review the political departments’ determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency’s nature demands ‘[a] prompt and unhesitating obedience.’” But the Court warned that “deference rests on reason, not habit.” And, more importantly, the Court determined that “clearly definable criteria for decision may be available. In such case the political question barrier falls away: ‘[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. … [It can] inquire whether the exigency still existed upon which the continued operation of the law depended.’”

In the context of the 9/11 military commission, the question is not whether or when a war ended but whether or when an armed conflict existed. Indeed, the question for the military commission is whether from August 23, 1996 to October 7, 2001, a period in which the United States failed to use force against al Qaeda on 99.95% of days, the United States and al Qaeda were engaged in an armed conflict. The judicial policy impetus for deference to the political branches—that the need for war powers may persist after the end of active hostilities (see Baker)—simply is not present when the government seeks to retroactively identify an armed conflict in a period in which it used none of its war powers.

More to the point, the military commission itself has not only already identified “clearly definable criteria for deci[ding]” whether an armed conflict existed between the United States and al Qaeda prior to September 11, 2001—the Tadić standard—the military commission has applied those criteria in rendering decisions (here and AE642N Order, issued in February but not yet available on the military commission’s website) on the discoverability of evidence in the government’s possession.

Moreover, the case law that purportedly supports the position that the existence of a war or armed conflict is a political question simply does not do so. Historically, U.S. courts have engaged with the question of whether an armed conflict or war existed across a diverse range of legal disciplines. Indeed, neither of the two cases—Johnson v. Eisentrager and The Prize Cases—cited for the proposition that the existence of war is a non-justiciable political question come close to that holding.

The Johnson Court did not consider—or, more to the point, did not refuse to consider—whether the United States was at war during World War II, nor did it express any opinion about its authority to entertain that question. The war’s existence was simply not at issue in that case. Instead, the passage of the Johnson opinion cited for the non-justiciability of determinations of the existence of an armed conflict addresses only whether “the presence of the military forces of the United States in China at the times in question was unconstitutional or, if lawfully there, that they had no right under the Constitution to set up a Military Commission on Chinese territory.” The Court answered that it is not the role of the judiciary to examine “the legality, the wisdom, or the propriety of the Commander-in-Chief in sending our armed forces abroad or to any particular region.”

The Prize Cases is more instructive. In that case, the Court was actually called to consider the existence of a war or armed conflict in order to determine the lawfulness of President Lincoln’s blockade. The Court explained that “[t]o legitimate the capture of a neutral vessel or property on the high seas, a war must exist de facto.” And, rather than describing the question as non-justiciable, the Court determined to “enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force.” The Court even defined war.

As was the case in Johnson, it was not determining the existence of a war that was beyond The Prize Cases Court’s consideration, but the propriety of policy choices concerning the armed conflict, including whether to recognize the belligerency of rebels or insurrectionists. Instead, the Court accepted its responsibility to determine the existence in fact of a war between the United States and the rebels. Indeed, Justice Grier posed the existence of a war as a threshold question to the lawfulness of the blockade: “Let us enquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force.” After defining war as the “state in which a nation prosecutes its right by force,” he foreshadowed modern analysis of non-international armed conflict by explaining that:

A civil war is never solemnly declared; it becomes such by its accidents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war.

… As a civil war is never publicly proclaimed, eo nomine against insurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and to know.

The true test of its existence, as found in the writing of the sages of the common law, may be thus summarily stated: ‘When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.’

In that light, Justice Grier took foreign declarations of neutrality to be ipso facto evidence of a war between the United States and the rebels. And, Grier held that “Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him … ‘He must determine what degree of force the crisis demands.’” Thus, “the proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.”

Significantly, Grier reasoned that Lincoln’s imposition of a blockade was both justified by the existence of war, as demonstrated by tangible facts, and conclusive evidence of that war. The President could not enforce a blockade—could not use the rights of a belligerent—against an American state if that state were not engaged in insurrection so intense it rose to the level of war. Nor would the President seek to use belligerent rights against an American state unless such a war existed.

Moreover, the United States’ recourse to belligerent rights vis-à-vis the states in rebel carried with it the legal effects of recognizing their belligerent status and conferring upon them the rights of belligerency, as well.

But examples of the competence of U.S. courts to resolve questions of armed conflict and peace are not limited to a handful of dusty if significant cases. Much like it did in the Military Commissions Acts, Congress directed courts to determine the existence or not of armed conflicts by including an act-of-war exception in the Anti-Terrorism Act. This exception limits compensation under the Act to terroristic acts occurring outside of an armed conflict and, thereby, requires courts to determine the existence or not of an armed conflict (see e.g. Kaplan v. Cent. Bank of the Islamic Republic of Iran). The same is true of courts martial and certain provisions of the Uniform Code of Military Justice that are subject to enhanced penalties during wartime.

Third, the 9/11 military commission’s decisions turn on deference to select political acts, unsupported by the broader history of American political decisions vis-à-vis al Qaeda. Throughout the rulings discussed here, the military commission defers to the 2009 and 2006 Military Commissions Acts (MCAs) as the relevant determination by the political branches than an armed conflict between the United States and al Qaeda predated the 9/11 attacks. But, in contrast to the blockade at issue in the Prize Cases, for example, the 2009 and 2006 MCAs are not contemporaneous policy choices made to address an extant emergency carrying contemporaneous legal effects. Instead, the 2009 and 2006 MCAs are ex post policy choices intended to bring about a particular end, which requires, rather than reflects certain legal circumstances.

In contrast to the situation before the 9/11 military commissions, the Prize Cases Court pointed to Lincoln’s blockade proclamation as evidence that the United States had employed its belligerent rights vis-à-vis the Confederacy by implementing the blockade and, therefore, an armed conflict existed as of the proclamation’s issuance. In this case, the military commission points to the October 2006 Military Commissions Act for the proposition that an armed conflict between the United States and al Qaeda preceded either the U.S. invasion of Afghanistan on October 7, 2001 or the terrorist acts of September 11, 2001. Of course, the 2006 Military Commission Act was enacted specifically to enable the prosecution by military commission of the five men on trial before the 9/11 military commission for that day’s terrorist acts. Thus, the military commission’s deference is simply the last segment in a tautology.

Moreover, in contrast to the Prize Cases, to the extent that the 2006 Military Commission Act expresses the political branches’ determination that an armed conflict between the United States and al Qaeda began prior to 9/11, it does so despite—not because of—contemporaneous facts. Prior to September 11, 2001, al Qaeda had attacked the United States twice, once in August 1998 and once in October 2000. The United States responded militarily to the August 1998 East Africa embassy bombings through a circumscribed expression of its inherent right to self-defense, but refused to use military force in response to the October 2000 U.S.S. Cole bombing.

Further—and as just one example of contrary political acts not acknowledged or discussed by the military commission—in the immediate aftermath of the U.S.S. Cole bombing, in reference to that terrorist attack, President Clinton expressly proclaimed the United States to be a nation at peace, which is to say, a nation not engaged in an armed conflict.

So, whereas the Court in the Prize Cases and even Johnson v. Eisentrager, referred to contemporaneous objective indicia of war that at least accorded with the political branches’ view, the military commission in the 9/11 case ignores contemporaneous objective facts as well as contemporaneous political acts. Thus, under the guise of deference, the military commission is anything but deferential—in order to preserve its own jurisdiction, it ignores the judgment of the President at the time in favor of that of his successors.

Worse, the D.C. Circuit already rejected the military commission’s specific view that the existence of hostilities between the United States and al Qaeda is a settled political question in In re Nashiri. In 2016, based on the debate within the Supreme Court’s Hamdan decision, the Court of Appeals for the D.C. Circuit found that “whether hostilities against al Qaeda existed at the time of Al-Nashiri’s alleged [pre-September 11, 2001] offenses, and whether Al-Nashiri’s conduct in Yemen took place in the context of those hostilities, are open questions.”

Conclusion: Rewriting History

In an apparent effort to preserve its own jurisdiction while proceeding towards trial, the 9/11 military commission has made a hash of its armed conflict jurisprudence. It has invested itself with incoherence, treating the existence of hostilities as simultaneously beyond its competence and subject to a well-developed, fact-based standard. Worryingly, it has preserved its own jurisdiction by cherry picking helpful ex post political acts unmoored from facts while ignoring contrary contemporaneous ones—and ignoring a superior court’s contrary determination. But most concerningly, in twisting its armed-conflict jurisprudence up, the military commission has lent its imprimatur to efforts to rewrite history and create, retroactively, armed conflict where there plainly was none. What confidence can future lawyers and courts have in the decisions of such a tribunal?

Editor’s Note: Benjamin R. Farley is a trial attorney and law-of-war counsel at the U.S. Department of Defense, Military Commissions Defense Organization and is assigned to the team representing Ammar al-Baluchi. The views expressed do not reflect the views of the Department of Defense, the United States Government, or any agency or instrumentality thereof.

Image – A sign reading, “Office of Military Commissions Expeditionary Legal Complex Guantanamo Bay, Cuba” stands close to where pre-trial hearings are being held for the detainees at the military prison on June 25, 2013 in Guantanamo Bay, Cuba. (EDITORS NOTE: Image has been reviewed by the U.S. Military prior to transmission.)