In a thoughtful article titled Getting It Wrong: The 9/11 Military Commission and the Justiciability of Armed Conflict, Guantanamo defense attorney Benjamin Farley argues that the military commission has made a mess of its jurisprudence regarding jurisdictional issues. He also argues that the commission has no jurisdiction to try his clients for actions performed prior to 9/11 because such actions occurred before an armed conflict existed between the United States and al-Qaeda. He’s right about the first point. The commission has gotten tangled up in a jurisdictional thicket. But he’s probably wrong on the second point. If the military commission were to think clearly about the relationship between jurisdiction, armed conflict, and complicity, it could find a clear path to asserting jurisdiction.
Background: A Question of Temporality
Before explaining both points, let me first recap the nature of the problem. Everyone agrees that the jurisdiction of the military commission is limited to offenses—war crimes—that occur during an armed conflict. Consequently, the requirement of an armed conflict is a jurisdictional requirement and at the same time is an element of each offense triable before the military commission.
However, defense and prosecution lawyers have disagreed in several cases over the start date of the relevant armed conflict between the United States and al-Qaeda. Farley suggests that this armed conflict did not begin until the U.S. invasion of Afghanistan on October 7, 2001, while the government has argued that the armed conflict began years before. This issue is especially acute in the Nashiri case, which involves the bombing of the USS Cole on October 12, 2000. In that case, the U.S. government contends that the United States was already engaged in an armed conflict with al-Qaeda by that time, either by virtue of a declaration made by Osama bin Laden in 1996 or military bombings conducted by the Clinton Administration against al-Qaeda targets in Afghanistan in 1998. (Farley finds both possibilities implausible.)
Farley is particularly concerned with the cases of Mustafa al Hawsawi and Ammar al Baluchi, both of whom are charged with assisting or facilitating the 9/11 hijackers. The alleged actions performed by al Hawsawi and al Baluchi both occurred prior to 9/11. In a series of rulings, the commission has concluded that whether an armed conflict existed at the time of these actions is a non-justiciable political question because Congress already made this determination in deciding to create the military commission system for the trial of the 9/11 attackers and those who supported them. Farley disagrees and says that the issue is justiciable and that the commission does not have jurisdiction because there was no armed conflict until the United States invaded Afghanistan.
As stated above, I agree with Farley that the commission erred when it considered the question a non-justiciable political question. Asserting that a jurisdictional fact is a political question is an odd stance to take, given the importance of a court always satisfying itself that it has jurisdiction. First, the existence of an armed conflict is not just a political declaration but also pertains to objective facts on the ground—such as the existence of hostilities—which are facts that a court is well equipped to determine on its own. Second, the statute defining the jurisdiction of the military commissions sounds as if it is declaring a jurisdictional and merits test for commissions and courts to apply. It seems unlikely that Congress was asserting that commissions only have jurisdiction for law of war offenses but then was directing courts not to worry about whether the jurisdictional standard is satisfied in individual cases. Third, even if that had been Congress’ intent, the “law of war” is a constitutional constraint on the jurisdiction of the military commissions and therefore a judicial, rather than legislative, determination to make. It might be appropriate for a court to give deference to the political branches in this area, but calling it a non-justiciable political question is a bridge too far.
However, I respectfully disagree with Farley that the commission does not have jurisdiction over actions performed prior to 9/11. Here’s why. To the extent that defendants are charged with acts of complicity or assistance that occurred prior to 9/11, the commission can rightly assert jurisdiction over those actions so long as they were assisting a crime that occurred during an armed conflict— assuming that the commission’s jurisdiction reaches back to 9/11. Simply put, the commission has been asking the wrong question. The jurisdictional inquiry is not whether an armed conflict existed on the date that the defendants performed their alleged actions, but rather whether the defendants assisted or facilitated a crime that occurred during an armed conflict.
To understand why this is so, consider the following two analogies, the first one dealing with territorial jurisdiction and the second one dealing with temporal jurisdiction. If a state wishes to assert territorial jurisdiction over a crime, it usually need find that only one element of the crime occurred on its territory. Part of the crime—indeed most of the crime—might have occurred on the territory of another state, and the forum state can still assert territorial jurisdiction as long as one element occurred on its territory.
Similarly, and more aptly, consider temporal restrictions on jurisdiction such as statutes of limitations. A statute of limitations provides a temporal limitation on a court’s jurisdiction, preventing it from adjudicating allegations of a crime that occurred long ago. The particular statute of limitations for each crime varies widely, with murder usually having no statute of limitations, and other crimes having periods that vary with their severity. Of particular concern is how to apply a statute of limitations to an accomplice that performs an act of facilitation in the distant past.
Consider, for example, an accomplice who assists a principal perpetrator in performing an arson. Assume, also, that the statute of limitations for arson is three years and that the principal perpetrator is accused of burning down the building within the three-year period. Here’s where things get interesting. Assume also that the accomplice performed his assistance four years ago. Can the court assert jurisdiction over the accomplice even though the accomplice acted four years before being charged? How should a court rule when the accomplice challenges the jurisdiction of the court?
The answer is that the court can rightly assert jurisdiction, once you understand the nature of accomplice liability as a mode of liability that is derivative in nature and parasitic upon the criminal wrongdoing of a principal perpetrator. The general rule is that the statute of limitations period begins to run only once every element of the offense has been completed. For an accomplice, one essential element is the existence of a principal perpetrator who commits a crime. Prior to the principal’s commission of the crime, the accomplice’s complicity is not yet finished. See, e.g., United States v. Kale, 661 F. Supp. 724, 726 (E.D. Pa. 1987) (“The statute of limitations did not begin to run for Kale’s aiding and abetting until Toll had made his last payment, or had made his last promise to make a payment to Suval. This follows because proof of the underlying offense is one of the essential elements required to prove aiding and abetting and the statute does not begin to run until a crime has been completed.” (internal citations omitted)); United States v. Erb, 543 F.2d 438, 446 (2d Cir. 1976). The rule also applies to conspiracy as a mode of liability, since a conspiracy continues until its target offense has been completed.
So, the right question that a court needs to ask is not whether the accomplice committed acts of assistance during the limitations period, but rather whether the accomplice assisted a crime that occurred during the limitation period. This is the general scheme for all acts of long-term complicity. Otherwise, long-term accomplices would escape the jurisdiction of a court entirely, since they cannot be charged as accomplices before the crime that they facilitated has occurred.
The commission at Guantanamo should follow a similar scheme for determining whether it has jurisdiction over accomplices that are alleged to have facilitated the 9/11 attacks. The commission should stop asking whether the acts of facilitation occurred during an armed conflict. Rather, the commission should be asking whether the defendants facilitated a crime that occurred during an armed conflict. If the defendants are alleged to be accomplices to a war crime that occurred during an armed conflict, then the commission has jurisdiction over the defendants, regardless of when the acts of assistance took place. As a matter of law, the defendants’ complicity occurred in part during the armed conflict because their complicity was not complete until the principal perpetrator committed the war crime during the conflict. Of course, this doctrinal result would not apply for any defendant charged solely with an inchoate crime—rather than a mode of liability—that was perpetrated prior to the existence of an armed conflict.
In other cases, such as Nashiri, the commission may need to delve into difficult factual questions regarding the alleged existence of an armed conflict between al-Qaeda and the United States in the late 1990s. But the case of al Hawsawi and al Baluchi is not one of them. The commission should simply apply basic principles regarding complicity and determine whether the defendants were accomplices to a war crime that was perpetrated during the armed conflict with al-Qaeda, rather than requiring that the acts of assistance occurred during that conflict.
One thing that the commission has gotten right is the procedure for handling these jurisdictional challenges. As noted above, the requirement of an armed conflict is both an element of the offense and a jurisdictional fact. A court responding to a jurisdictional challenge from the defense must determine whether the prosecution has satisfied its burden in establishing the jurisdictional facts while, at the same time, not turning a jurisdictional hearing into a full-blown trial on the merits. As my colleague Kevin Clermont argued in the civil context, courts can resolve jurisdictional challenges prior to trial with a lower standard of proof and then reconsider the same facts under a higher standard of proof on the merits during the trial itself. Luckily, that appears to be the scheme that the military commission has followed.