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LEXSEE 4 J. NAT'L SECURITY L. & POL'Y 295

Copyright (c) 2010 University of the Pacific, McGeorge School of Law


Journal of National Security Law & Policy

2010

4 J. Nat'l Security L. & Pol'y 295

LENGTH: 24530 words

ARTICLE: The Laws of War as a Constitutional Limit on Military Jurisdiction

NAME: Stephen I. Vladeck*

BIO: * Professor of Law, American University Washington College of Law. This article benefitted tremendously from
comments received at the 2009-2010 Foreign Relations Colloquium at Georgetown University Law Center; the 2009
Workshop of the International Law in Domestic Courts Working Group of the American Society of International Law;
and the University of Minnesota School of Law's October 2009 conference on "Exceptional Courts and Military
Commissions." I owe particular thanks to Laura Donohue, Dave Glazier, Vicki Jackson, David Luban, Fionnuala Ni
Aolain, Beth van Schaack, Carlos Vazquez, and especially Ingrid Wuerth. Thanks also to Dean Claudio Grossman for
generous research support, and to students in my Fall 2009 seminar on "The Constitution and Military Jurisdiction." In
the interests of full disclosure, I should note that I played a recurring role on the legal team for the petitioner in Hamdan
v. Rumsfeld, 548 U.S. 557 (2006), and that I have also been involved both formally and informally in much of the
post-Military Commissions Act litigation before the D.C. district court and D.C. Circuit. Needless to say, the views
expressed herein are mine alone.

LEXISNEXIS SUMMARY:
... Citing Quirin and Yamashita for the proposition that "the constitutional authority to enact federal criminal laws
relating to the commission of war crimes is undoubtedly the same as the authority to create military commissions to
prosecute perpetrators of these crimes," Congress created civilian criminal jurisdiction for "grave breaches" of the
Geneva Conventions, authority it expanded in 1997 to cover an even wider class of "war crimes." ... Although difficult
questions remain about whether the laws of war affirmatively limit Congress's Article I power (since other Section 8
authorities may do some of the work that the Law of Nations Clause does not), the one point that becomes clear in light
of the case law examined in Parts I and II is that the real limits on offender and offense jurisdiction in military
commissions come not from Article I, but from Article III and the Fifth and Sixth Amendments. ... Covert, holding that
the UCMJ provision authorizing courts-martial in certain circumstances for non-servicemembers "accompanying the
armed forces without the continental limits of the United States" did not violate the right to trial by jury protected by
both Article III and the Sixth Amendment, on the ground that those protections did not apply extraterritorially. ... In so
acting, Congress had not used its power under the Raise Armies, Declare War, or Make Rules Clauses (as Chief Justice
Chase had suggested it might in Milligan), but had exercised its authority to define and punish offenses against the law
of nations by sanctioning, within constitutional limits, 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.
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4 J. Nat'l Security L. & Pol'y 295, *295

TEXT:
[*295]

Two months after the attacks of September 11, President George W. Bush promulgated an executive order
establishing military commissions. n1 These commissions, ad hoc trial courts staffed with military judges and governed
entirely by rules subsequently issued by the Secretary of Defense, were intended to try non-citizens captured outside the
territorial United States for various terrorism-related offenses, n2 although the executive order said nothing about what
those offenses might be - let alone other subsidiary questions. n3 The November 2001 "military order" was
controversial when it was handed down (publicly and within the Administration), n4 both because it seemed to lack
statutory authorization and because it was arguably inconsistent with what few pre-9/11 precedents could be found on
the subject. n5

[*296] Nine years, one Supreme Court decision, n6 two statutes, n7 and a veritable mountain of popular and
academic discourse later, one might reasonably conclude that we've made distressingly little progress in resolving the
myriad constitutional questions that such tribunals raise. These questions have become much more pressing over time,
as (1) Congress has stepped in to provide the authorization that the Supreme Court in Hamdan found to be lacking
(thereby squarely raising some of the underlying constitutional questions); (2) the debate over whether civilian courts or
military tribunals are a more appropriate forum for trying the so-called "9/11 defendants" has raged both in public
circles and behind the scenes within the current Administration; n8 (3) the nominal defendants before the military
commissions have languished in various states of legal limbo; n9 and (4) most recently, the Supreme Court has upheld
Congress's power to broadly prohibit the provision of "material support" to designated foreign terrorist organizations,
n10 an offense that Congress has also made triable before a military commission. n11

It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more
appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may
constitutionally exercise jurisdiction over particular offenses and/or offenders. n12 And yet, although a number of
defendants have attempted to challenge the jurisdiction of the military commissions - [*297] especially under the
MCA - none of their cases have managed to produce a decision on the merits from any court higher than the Court of
Military Commission Review (CMCR). n13 Instead, the federal courts have generally relied on "abstention" doctrine,
n14 holding that challenges to the commissions, including to their jurisdiction, can - and should - be resolved on
post-conviction appeal. n15 That's not to say that the Article III courts won't have the last word; they may well, yet. But
in the interim, the time has long since passed for a careful explication of the issues, the relevant precedents, and the
most likely answers.

In the article that follows, I attempt to provide a thorough introduction to - and analysis of - the constitutional limits
on the jurisdiction of military commissions. By "jurisdiction," I mean two distinct types of authority: jurisdiction over
the offense, and jurisdiction over the offender. n16 The former determines whether the military court has the authority
to try the charged offense; the latter whether the military court has the authority to try the charged defendant. There are
some precedents on the scope of these two species of jurisdiction in the context of military commissions, but the law is
far better settled in the closely analogous context of courts-martial, where similar issues routinely arise.

Thus, I begin in Part I by laying out the various ways in which the Constitution, as interpreted by the Supreme
Court, imposes limits on the offender jurisdiction of courts-martial. In particular, Part I explains how the Court has
consistently derived limits on such jurisdiction from the [*298] "Make Rules" Clause of Article I, n17 the jury trial
clauses of Article III and the Sixth Amendment, n18 and the Grand Jury Indictment Clause of the Fifth Amendment,
which expressly exempts from its requirements "cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger." n19 Although courts and commentators have come to understand these
provisions as strictly limiting the offender jurisdiction of courts-martial to members of our own military, n20 the
Supreme Court has also embraced what Chief Justice Rehnquist claimed to be the negative implication of this logic -
that Congress's power over those individuals (and over the offense jurisdiction of courts-martial) is effectively plenary.
n21
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4 J. Nat'l Security L. & Pol'y 295, *298

More important than the specific rules that emerge from the cases surveyed in Part I, though, is the analytical
framework. Congress's power to generally define criminal offenses comes from its Article I authority under the Make
Rules Clause, but Congress's ability to subject servicemembers to military - rather than civilian - jurisdiction derives
from the "land and naval forces" exception to the Fifth Amendment's Grand Jury Indictment Clause. Put another way, in
the context of courts-martial, Congress's power over offense jurisdiction is circumscribed by Article I, and its power
over offender jurisdiction is circumscribed by the Fifth Amendment.

With the framework articulated in the court-martial cases in mind, I turn in Part II to the handful of cases in which
the Supreme Court has had the opportunity to expound on the constitutional limits on military commissions. Rather than
break these cases out by type of jurisdiction, I take them chronologically, in an attempt to show how each case built
upon - and, in some instances, modified - the rules that the Court had previously articulated. What emerges from the
cases surveyed in Part II are a series of important - if somewhat counterintuitive - conclusions: Although the Court has
been fairly vague about the constitutional limits on offense jurisdiction (as Part II notes, the issue has never been
squarely presented), n22 it has [*299] suggested that the limits may well come from Article I, which separately
authorizes Congress to "define and punish ... Offences against the Law of Nations," n23 and to "make Rules concerning
Captures on Land and Water." n24 Leaving aside (for the moment) the Captures Clause, n25 the so-called "Law of
Nations Clause" n26 may itself settle at least some of the issues by requiring that the defined offense itself be
recognized as an offense against the Law of Nations. n27

But in sharp contrast to its various dicta concerning the offense jurisdiction of military commissions, the Supreme
Court has been rather explicit about the constitutional limits on offender jurisdiction. Indeed, as Chief Justice Stone
wrote for the Court in Ex parte Quirin,

An express exception from Article III, § 2, and from the Fifth and Sixth Amendments, of trials of petty offenses and of
criminal contempts has not been found necessary in order to preserve the traditional practice of trying those offenses
without a jury. It is no more so in order to continue the practice of trying, before military tribunals without a jury,
offenses committed by enemy belligerents against the law of war. n28

[*300] Put another way, Quirin held that the Fifth and Sixth Amendments do not constrain offender jurisdiction of
military courts so long as it is exercised over "enemy belligerents" charged with committing "offenses ... against the law
of war." The constitutional limit on offender jurisdiction is inextricably linked with the constitutional limit on offense
jurisdiction. As importantly, both stem directly, at least according to Quirin, from the laws of war.

With this conclusion in mind, Part III turns to a more structural analysis of how, in light of Quirin, the laws of war
serve as a constitutional limit on military jurisdiction - and how other constitutional provisions fit into that analysis. In
particular, Part III begins by carefully tracing the history of the Law of Nations Clause and its relationship to Congress's
power over both the offender and offense jurisdiction of military commissions. Although difficult questions remain
about whether the laws of war affirmatively limit Congress's Article I power (since other Section 8 authorities may do
some of the work that the Law of Nations Clause does not), the one point that becomes clear in light of the case law
examined in Parts I and II is that the real limits on offender and offense jurisdiction in military commissions come not
from Article I, but from Article III and the Fifth and Sixth Amendments. n29

In other words, whether or not Congress has the power to define as federal criminal offenses conduct not
recognized as a violation of the laws of war, the grand-and petit-jury trial protections in Article III and the Bill of Rights
prevent Congress from subjecting such conduct to trial by military commission unless the offense is committed (1) by
our own servicemembers; or (2) by an enemy belligerent in violation of the laws of war. In light of this conclusion, Part
III demonstrates how several of the more controversial provisions of the MCA face serious constitutional jeopardy,
especially at their margins.
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4 J. Nat'l Security L. & Pol'y 295, *300

I. The Constitution and Court-Martial Jurisdiction

Military jurisdiction as an idea was hardly foreign to the drafters of the Constitution. The Articles of Confederation had
expressly provided the Continental Congress with the power of "making rules for the government and regulation of the
said land and naval forces, and directing their operations," n30 and the legislature had exercised that authority in 1775
by adopting Articles of War (as amended in 1776 and 1786) that provided for trial by court-martial. n31 The
Constitution similarly empowered Congress to [*301] "make Rules for the Government and Regulation of the land and
naval forces," n32 and the First Congress promptly exercised that prerogative, adopting in full the Articles of War that
had been inherited from the Confederation Congress. n33 And when a right to grand jury indictment or presentment was
specifically included in the Bill of Rights, an exception was added for "cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger." n34

Thus, the constitutional question of interest was never whether there could be a separate military justice system, but
what the limits of that system's jurisdiction would be. And although the Supreme Court had a number of occasions
during the nineteenth century to pass upon whether a court-martial had acted within its statutory jurisdiction, n35 it was
not until a series of cases after World War II that the Court seriously began to grapple with the constitutional limits on
that authority. n36 Although the following analysis might seem tedious at times, one can see, as the Court's
jurisprudence evolved, a fairly clear movement toward a basic structural framework for military jurisdiction.

A. Offender Jurisdiction

For a host of reasons, the number of federal habeas petitions in which court-martial defendants sought collaterally to
attack their convictions skyrocketed in the late 1940s and early 1950s, n37 especially after (and, to some degree, as a
result of) the codification of the Uniform Code of Military Justice (UCMJ). n38 And in Burns v. Wilson, n39 the
Supreme Court [*302] implicitly but unequivocally sustained the jurisdiction of the lower federal courts n40 to
entertain such claims, n41 even in cases in which the petitioner was detained outside the territorial United States. n42
Thus, although collateral review was limited, at least initially, to "jurisdictional" challenges, n43 concerns over the
"rough form of justice" n44 thought to be dispensed by the military courts may well have helped to precipitate a series
of decisions identifying constitutional constraints on the scope of the offender jurisdiction that courts-martial could
exercise.

The first such case to reach the Supreme Court was that of ex-servicemember Robert W. Toth, who was
court-martialed for an offense committed while serving in the Air Force in Korea even though he was not arrested until
five months after he was honorably discharged. Because Article 3(a) of the UCMJ expressly authorized such trials, n45
the Court was [*303] confronted with the question whether Congress could constitutionally subject former
servicemembers to trial by court-martial. For a 6-3 Court, Justice Black answered that question in the negative. After
asserting that Article 3(a) "cannot be sustained on the constitutional power of Congress "To raise and support Armies,'
"To declare War,' or to punish "Offenses against the Law of Nations,'" n46 Black turned to the Make Rules Clause. As
he explained,

This Court has held that the [Make Rules Clause] authorizes Congress to subject persons actually in the armed service
to trial by court-martial for military and naval offenses. Later it was held that court-martial jurisdiction could be exerted
over a dishonorably discharged soldier then a military prisoner serving a sentence imposed by a prior court-martial. It
has never been intimated by this Court, however, that Article I military jurisdiction could be extended to civilian
ex-soldiers who had severed all relationship with the military and its institutions. To allow this extension of military
authority would require an extremely broad construction of the language used in the constitutional provision relied on.
For given its natural meaning, the power granted Congress "To make Rules" to regulate "the land and naval Forces"
would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces. There
is a compelling reason for construing the clause this way: any expansion of court-martial jurisdiction like that in the
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4 J. Nat'l Security L. & Pol'y 295, *303

1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where
persons on trial are surrounded with more constitutional safeguards than in military tribunals. n47

Black thereby relied expressly on the language of Article I, perhaps because he would have had a more difficult time
resting his analysis on the Fifth Amendment, which expressly excepted "cases arising in the land or naval forces." Since
Toth's alleged crime was committed while he was in the service, it might well have "arisen" in the land and naval forces.
Black dismissed that possibility, however, noting that "This provision does not grant court-martial power to Congress; it
merely makes clear that there need be no indictment for such military offenses as Congress can authorize military
tribunals to try under its Article I power to make rules to govern the armed forces." n48 In other words, the crux of the
holding in Toth was a [*304] limitation on the scope of the Make Rules Clause to "persons who are actually members
of part of the armed forces." n49

So understood, Toth called into question the constitutionality of court-martial jurisdiction over any
non-servicemember, including dependents of soldiers and civilian employees of the military. And yet, just over one year
after Toth, the Court distinguished that decision in Kinsella v. Krueger and Reid v. Covert, holding that the UCMJ
provision authorizing courts-martial in certain circumstances for non-servicemembers "accompanying the armed forces
without the continental limits of the United States" did not violate the right to trial by jury protected by both Article III
and the Sixth Amendment, on the ground that those protections did not apply extraterritorially. n50 Writing for a 5-3
Court in both cases, n51 Justice Clark upheld the court-martial convictions of two wives of servicemembers for the
murders of their husbands, reasoning that:

Having determined that one in [such] circumstances ... may be tried before a legislative court established by Congress,
we have no need to examine the power of Congress "To make Rules for the Government and Regulation of the land and
naval Forces" under Article I of the Constitution. If it is reasonable and consonant with due process for Congress to
employ the existing system of courts-martial for this purpose, the enactment must be sustained. n52

With the dissenters (and, apparently, Justice Harlan) objecting that the cases had been decided too quickly, n53 the
Court took the extraordinary step of granting - over three dissents - a petition for rehearing, n54 and setting the now
consolidated cases for re-argument the following Term. On re-argument, the Court reversed itself, n55 with a plurality
holding that the Constitution did not countenance the trial by court-martial of civilians for any offenses, and with
Justices Harlan and Frankfurter separately noting [*305] their concurrence in the judgment on the narrower ground
that the Constitution barred such trials for capital offenses during peacetime.

For the plurality, Justice Black centered his reasoning on three different strands of argument: that the Bill of Rights
protected citizens even when overseas, n56 that such protections could not be overridden by treaty, n57 and that Article
I constrained the scope of military jurisdiction, per his opinion for the Court in Toth. n58 As he argued with respect to
the last point, "The wives of servicemen are no more members of the "land and naval Forces' when living at a military
post in England or Japan than when living at a base in this country or in Hawaii or Alaska." n59 Black then rejected the
government's contention that the Make Rules Clause should be read together with the Necessary and Proper Clause,
concluding that

the Necessary and Proper Clause cannot operate to extend military jurisdiction to any group of persons beyond that
class described in Clause 14 - "the land and naval Forces."... Every extension of military jurisdiction is an encroachment
on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other
treasured constitutional protections. Having run up against the steadfast bulwark of the Bill of Rights, the Necessary and
Proper Clause cannot extend the scope of Clause 14. n60
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Writing separately, Justice Frankfurter concurred in the judgment, emphasizing that "it is only the trial of civilian
dependents in a capital case in time of peace that is in question." n61 Although Frankfurter did not see the issue as being
nearly as straightforward as Justice Black described it, he agreed that the government's policy arguments for extending
court-martial jurisdiction over the dependents of servicemembers in such cases were unconvincing. n62 Justice Harlan
also concurred in the result, resting his separate opinion, like Justice Frankfurter, on the fact that the offenses charged in
both cases were capital. n63 Unlike Frankfurter, though, Harlan [*306] devoted his opinion to the relationship between
the Make Rules Clause and the Fifth and Sixth Amendments. And although he believed that the Make Rules Clause,
read together with the Necessary and Proper Clause, could justify the exercise of military jurisdiction over
non-servicemembers accompanying the armed forces, n64 he also concluded that the right to trial by jury was too
significant in capital cases to tolerate a territoriality-based exception. In his words,

So far as capital cases are concerned, I think they stand on quite a different footing than other offenses. In such cases
the law is especially sensitive to demands for that procedural fairness which inheres in a civilian trial where the judge
and trier of fact are not responsive to the command of the convening authority. I do not concede that whatever process is
"due" an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a
capital case. The distinction is by no means novel ... nor is it negligible, being literally that between life and death. n65

Thus, Reid established at a minimum that the Constitution proscribed courts-martial for non-servicemembers for capital
offenses committed during peacetime. It would remain for future cases to consider whether the bar extended any further.
Perhaps unsurprisingly, such claims quickly reached the Court.

The issue was largely settled less than three years later when, on January 18, 1960, the Court handed down three
decisions clarifying the scope of Reid's constitutional constraint on court-martial jurisdiction over non-servicemembers.
In Kinsella v. United States ex rel. Singleton, a 7-2 Court (with Justices Frankfurter and Harlan in dissent) held that the
Constitution barred the peacetime exercise of military jurisdiction over the dependents of servicemembers for
non-capital offenses. n66 In Grisham v. Hagen, a 7-2 Court held that the Constitution barred the peacetime exercise of
military jurisdiction over civilian employees of the military for capital offenses, reasoning that such a result followed
squarely from Reid n67 (a point in which Harlan and Frankfurter concurred). n68 And in McElroy v. United States ex
rel. Guagliardo, a 5-4 Court filled in the last square of the two-by- [*307] two matrix, holding that civilian employees
also could not be subjected to military jurisdiction during peacetime for non-capital offenses. n69

Justice Clark - author of the dissent in Reid - wrote for the Court in all three cases, concluding that Reid's
constitutional analysis couldn't countenance the capital/non-capital distinction urged by Justices Harlan and Frankfurter.
Instead, "The test for jurisdiction, it follows, is one of status, namely, whether the accused in the court-martial
proceeding is a person who can be regarded as falling within the term "land and naval Forces.'" n70 Moreover, "since
this Court has said that the Necessary and Proper Clause cannot expand Clause 14 so as to include prosecution of
civilian dependents for capital crimes, it cannot expand Clause 14 to include prosecution of them for noncapital
offenses." n71

The January 18 trilogy was the last time the Supreme Court would speak directly to the scope of Congress's power
to subject non-servicemembers to trial by court-martial. Although a number of cases testing the outer boundaries of
Toth, Reid, and their progeny have subsequently arisen in the lower courts, most have raised largely technical questions
concerning the termination of military service and the status of active and inactive reservists. n72 The one exception of
note is United States v. Averette, a Vietnam-era case in which the U.S. Court of Military Appeals (the forerunner to
today's U.S. Court of Appeals for the Armed Forces) considered whether Guagliardo's bar on courts-martial for civilian
employees of the military also applied during "wartime." n73 Raising the specter of Reid and its progeny, the Court of
Military Appeals construed the UCMJ's provision authorizing such trials "in time of war" to only apply during "a war
formally declared by Congress," n74 which Vietnam most pointedly was not. As Judge Darden noted for the court, "A
broader construction of Article 2(10) would open the possibility of civilian prosecutions by military courts whenever
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military action on a varying scale of intensity occurs." n75

Although Averette's construction of the UCMJ thus squarely avoided deciding whether Congress could
constitutionally subject civilian employees of the military to trial by court-martial during "wartime," it [*308] certainly
suggested that Congress would run into grave constitutional difficulties if it did so during any conflict other than a
formally declared war. The question remains open today, though, especially in light of a 2006 amendment to the UCMJ
sponsored by Senator Lindsay Graham that authorizes courts-martial for "persons serving with or accompanying an
armed force in the field" "in time of declared war or a contingency operation." n76

Leaving aside the merits of the above decisions, their upshot is both straightforward and significant: at least in the
context of courts-martial, it is now black-letter law that the primary (if not exclusive) source of Congress's constitutional
authority over the offender jurisdiction of such tribunals is the Make Rules Clause of Article I. Similarly, that provision,
along with the rights to grand jury indictment and trial by petit jury secured by Article III and the Fifth and Sixth
Amendments, serves to limit the scope of the offender jurisdiction of courts-martial to servicemembers - at least in the
absence of a formal declaration of war. In other words, these cases do not just support the conclusion that Congress only
has the authority to "make rules" for individuals in the armed forces; they establish the equally important idea that the
validity of military (versus civilian) jurisdiction turns on the inapplicability of the grand-and petit-jury trial rights in
Article III and the Fifth and Sixth Amendments. In understanding the constitutional constraints on the jurisdiction of
military commissions, the constraints the Supreme Court has identified in the related context of courts-martial will
provide useful illumination.

B. Offense Jurisdiction

The Supreme Court's jurisprudence evolved episodically with regard to constitutional constraints on the offender
jurisdiction of courts-martial. Its jurisprudence with regard to such tribunals' offense jurisdiction has only two relevant
polestars: the 1969 decision in O'Callahan v. Parker, n77 and the 1987 decision in Solorio v. United States, n78 in
which the Court overruled O'Callahan.

In O'Callahan, the Court rejected what the government offered as the negative implication of the Toth/Reid line of
offender jurisdiction decisions [*309] - that "the fact that courts-martial have no jurisdiction over nonsoldiers,
whatever their offense," should "imply that they have unlimited jurisdiction over soldiers, regardless of the nature of the
offenses charged." n79 Instead, Justice Douglas, writing for a 6-3 Court, conducted an extensive (if controversial) n80
canvas of English and early American history, concluding from that history that

the crime to be under military jurisdiction must be service connected, lest "cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger," as used in the Fifth Amendment, be expanded to
deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his
peers. n81

Although the majority left for another day the articulation of specific criteria to be used in determining whether a
particular offense was "service connected," n82 and stressed a number of other limitations upon its holding, n83 it had
no trouble concluding that O'Callahan's offense was too far removed from his military service, n84 as a result of which
his court-martial was constitutionally precluded.

The "service connection" test lasted for 17 years, but it received substantial and withering criticism along the way,
n85 culminating in its overruling by the Court in Solorio. What is telling about Solorio is not so [*310] much the fact
that the Court overruled O'Callahan, but the manner in which it did so.

Writing for a 5-3 majority, n86 Chief Justice Rehnquist began with the proposition that "In an unbroken line of
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4 J. Nat'l Security L. & Pol'y 295, *310

decisions from 1866 to 1960, this Court interpreted the Constitution as conditioning the proper exercise of court-martial
jurisdiction over an offense on one factor: the military status of the accused." n87 These decisions made sense,
Rehnquist explained, because "Whatever doubts there might be about the extent of Congress' power under Clause 14 to
make rules for the "Government and Regulation of the land and naval Forces,' that power surely embraces the authority
to regulate the conduct of persons who are actually members of the Armed Services." n88 Moreover, the history
recounted by the O'Callahan majority appeared to be far more ambiguous than O'Callahan itself had suggested, n89 and
the "service connection" test had, according to the majority, proven inordinately difficult to administer. Thus,

When considered together with the doubtful foundations of O'Callahan, the confusion wrought by the decision leads us
to conclude that we should read Clause 14 in accord with the plain meaning of its language as we did in the many years
before O'Callahan was decided. That case's novel approach to court-martial jurisdiction must bow "to the lessons of
experience and the force of better reasoning." We therefore hold that the requirements of the Constitution are not
violated where, as here, a court-martial is convened to try a serviceman who was a member of the Armed Services at the
time of the offense charged. n90

Justice Marshall, joined by Justices Brennan and Blackmun, dissented, arguing that the majority misunderstood
O'Callahan. Specifically, Marshall suggested that O'Callahan had rested on Article III and the Fifth and Sixth
Amendments more than on a limited reading of the Make Rules Clause, and that Congress's otherwise plenary power
under the latter could not override the constraints resulting from the former. In his words, "The exception contained in
the Fifth Amendment is expressed - and applies by [*311] its terms - only to cases arising in the Armed Forces." n91
Thus, as Marshall explained, "O'Callahan addressed not whether [the Make Rules Clause] empowered Congress to
create court-martial jurisdiction over all crimes committed by service members, but rather whether Congress, in
exercising that power, had encroached upon the rights of members of Armed Forces whose cases did not "arise in' the
Armed Forces." n92

Marshall went on to suggest that O'Callahan had not proven unworkable, n93 and that traditional principles of stare
decisis compelled fidelity to precedent. n94 But with one possible exception, n95 Chief Justice Rehnquist's analysis
remains the law today, and with it, the notion that Congress's power over the subject-matter jurisdiction of
courts-martial is, thanks to the Make Rules Clause, plenary.

C. The Constitutional Structure of Court-Martial Jurisdiction Today

Although Chief Justice Rehnquist's opinion for the Court in Solorio is routinely understood as significant only with
respect to the rights of servicemember defendants, his analysis may have broader structural consequences that have, to
date, not been fully fleshed out. Specifically, the notion that the Make Rules Clause confers plenary authority upon
Congress to subject servicemembers to court-martial jurisdiction comes with a significant caveat. For if the Make Rules
Clause is the primary - if not exclusive - source of Congress's authority to subject particular offenses to trial by
court-martial, such authority is therefore limited to those individuals who are properly subject to congressional authority
under the Clause, i.e., members of our land and naval forces. Put another way, the [*312] logic of Solorio, pursuant to
which U.S. servicemembers may be tried for virtually any offense, cuts very much against congressional power to
subject individuals outside the scope of the Make Rules Clause to military jurisdiction, unless another source of such
legislative authority can be identified. And even then, the constitutional rights to grand jury indictment and trial by petit
jury may nevertheless furnish their own constraint.

II. The Constitution and Military Commission Jurisdiction

Although scattered examples of irregular military courts - shorthanded as "military commissions" - can be found in the
years leading up to the Civil War, n96 the first judicial decisions passing upon the relevant constitutional limits on such
tribunals have the "War Between the States" as their backdrop. n97 To be sure, the Supreme Court bypassed its first
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4 J. Nat'l Security L. & Pol'y 295, *312

opportunity to review a military commission convened by President Lincoln, holding in Ex parte Vallandigham that it
lacked the statutory authority to review, by writ of certiorari, the proceedings of a military commission. n98 But when
Lambdin Milligan brought a habeas petition challenging his conviction by a military commission established by the
Union military commander for Indiana, the lower-court judges certified a division of authority, n99 triggering the
Court's jurisdiction to reach the merits - and to decide the circumstances under which trials by military commission
might be constitutional.

[*313]

A. Milligan

Justice Davis's opinion for the majority in Ex parte Milligan was absolute from the outset. n100 Noting that "no graver
question was ever considered by this court," n101 Davis first rejected the possibility that authority for the commissions
might derive from the "laws and usages of war," which, in his view, "can never be applied to citizens in states which
have upheld the authority of the government, and where the courts are open and their process unobstructed." n102 More
fundamentally, though, Davis concluded that the critical consideration was whether Milligan had a right to trial by jury:

If ideas can be expressed in words, and language has any meaning, this right - one of the most valuable in a free country
- is preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service. The
sixth amendment affirms that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial
by an impartial jury," language broad enough to embrace all persons and cases; but the fifth, recognizing the necessity
of an indictment, or presentment, before any one can be held to answer for high crimes, "excepts cases arising in the
land or naval forces, or in the militia, when in actual service, in time of war or public danger;" and the framers of the
Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were
subject to indictment or presentment in the fifth. n103

And although situations of martial law might justify derogation from the protections of the Bill of Rights, Davis went
on to conclude, famously, that "Martial rule can never exist where the courts are open, and in the proper and
unobstructed exercise of their jurisdiction." n104 Thus, irrespective of whether Congress had authorized Milligan's trial
(it had not), the majority maintained that it could not, thanks to the jury trial provisions of Article III and the Fifth and
Sixth Amendments.

Writing separately for himself and Justices Wayne, Swayne, and Miller, Chief Justice Chase agreed with the
majority that the commission that tried [*314] Milligan was unlawful (largely because of the absence of congressional
authorization), but disagreed with what he saw as unnecessary dicta in Davis's opinion to the effect that Congress
couldn't, in appropriate circumstances, subject certain offenses and offenders to trial by military commission. n105
Instead, as Chase explained, "We think that Congress had power, though not exercised, to authorize the military
commission which was held in Indiana." n106 Chase then proceeded to consider the possible sources of such legislative
power, rejecting the Make Rules Clause as a candidate. n107 Instead,

We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.

Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war,
and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to
determine in what states or district such great and imminent public danger exists as justifies the authorization of military
tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.
n108
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Thus, as Chase would conclude two pages later, "We think that the power of Congress, in such times and in such
localities, to authorize trials for crimes against the security and safety of the national forces, may be derived from its
constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide
for governing the national forces." n109 When Chase's opinion was heavily (if implicitly) incorporated by the Supreme
Court the next time it confronted the constitutionality of military commissions three-quarters of a century later, n110
this passage would be entirely forgotten.

[*315]

B. Quirin

It was probably no understatement when, in 2004, Justice Scalia referred to the Supreme Court's 1942 decision in Ex
parte Quirin, n111 as "not this Court's finest hour." n112 Quirin upheld the constitutionality of a military tribunal
established by President Roosevelt to try eight Nazi saboteurs caught within the United States. Even Justice Frankfurter,
who joined Chief Justice Stone's opinion for the unanimous Court in Quirin in its entirety, later referred to the decision
as "not a happy precedent." n113 And popular and academic commentaries on the decision have been nearly uniform in
their withering criticism of both the merits of the Court's analysis and the unusual means by which it disposed of the
case. n114

Quirin is perhaps most controversial to the extent that it was inconsistent with Milligan, which it sidestepped in two
significant ways. First, the Quirin Court found congressional authorization for military commissions (which had been
lacking in Milligan) in a statute that was, charitably, ambiguous. n115 Specifically, the Court relied upon what was then
Article 15 of the Articles of War (as enacted by Congress in 1916 and amended in 1920), which provided that "the
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 statute or by the law of war may be
triable by such military commissions." n116 In Chief Justice Stone's view, Article 15 reflected Congress's affirmative
desire to allow the President to convene [*316] military commissions in any cases that, under the laws of war, could be
subjected to military jurisdiction. n117

Separate from whether Article 15 actually did authorize the saboteurs' trial by military commission, Quirin also
reflected upon the source of Congress's authority to so provide - an aspect of the Court's analysis that has received far
less attention than its statutory parsing. As Chief Justice Stone explained, Article 15 was proof that "Congress has
explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders
or offenses against the law of war in appropriate cases." n118 In so acting, Congress had not used its power under the
Raise Armies, Declare War, or Make Rules Clauses (as Chief Justice Chase had suggested it might in Milligan), but had

exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional
limits, 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. n119

[*317] In other words, in sanctioning Congress's implicit authorization of the trial of offenses against the laws of war
by military commissions, Quirin held that the power to so provide came from the Law of Nations Clause - and not any
other source of Article I authority. To be sure, Congress had chosen to "adopt[] the system of common law applied by
military tribunals so far as it should be recognized and deemed applicable by the courts," rather than "crystallizing in
permanent form and in minute detail every offense against the law of war," n120 but the critical point was that its
authority to adopt either alternative came from only one provision of Article I: the Law of Nations Clause. n121

This point is reinforced by Quirin's second - and more fundamental - departure from Milligan: its conclusion that
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the constitutional rights to grand jury indictment and to trial by petit jury in criminal cases, which had been so central to
Justice Davis's analysis in Milligan, n122 were simply inapplicable. As Stone explained,

We may assume, without deciding, that a trial prosecuted before a military commission created by military authority is
not one "arising in the land ... forces," when the accused is not a member of or associated with those forces. But even so,
the exception [in the Grand Jury Indictment Clause] cannot be taken to affect those trials before military commissions
which are neither within the exception nor within the provisions of Article III, § 2, whose guaranty the Amendments did
not enlarge. No exception is necessary to exclude from the operation of these provisions cases never deemed to be
within their terms. An express exception from Article III, § 2, and from the Fifth and Sixth Amendments, of trials of
petty offenses and of criminal contempts has not been found necessary in order to preserve the traditional practice of
trying those offenses without a jury. It is no more so in order to continue the practice of trying, before military tribunals
without a jury, offenses committed by enemy belligerents against the law of war. n123

In other words, the rights to grand jury indictment and trial by petit jury enmeshed within Article III and the Fifth and
Sixth Amendments included a [*318] categorical exception for "offenses committed by enemy belligerents against the
law of war," a carve-out the existence of which, however normatively persuasive, n124 Stone traced to precisely one
isolated statutory authority. n125

As for Milligan, Stone maintained that Justice Davis's majority opinion "was at pains to point out that Milligan ...
was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon
unlawful belligerents." n126 Thus, whereas the Constitution's jury protections (as interpreted in Milligan) barred the
trial of civilians by military commission when civil process was available, it did not bar such trials for "enemy
belligerents" charged with violating the laws of war irrespective of the availability of civil courts, and Congress had in
fact authorized such trials through Article 15 of the Articles of War. Quirin thus converted Milligan's apparently
categorical constitutional ban on military commissions in areas not under martial rule into a circumstance-specific rule
that turned on the status of the offender and the nature of the charged offense. To that end, the Court in Quirin
proceeded to devote nine pages to the specific question of whether the offenses with which the saboteurs were charged
actually were violations of the laws of war, answering that question - predictably - in the affirmative. n127

Whether Quirin was fair to Milligan in its distinguishing of the earlier case is a matter of considerable dispute - and
continuing debate. n128 What matters for present purposes, though, is that Quirin necessarily reached two
forward-looking constitutional holdings in addition to its construction of Article 15: First, Quirin established that
Congress had the constitutional authority, under the Law of Nations Clause, to subject to trial "offenders or [*319]
offenses that by statute or by the law of war may be triable by such military commissions." Second, Quirin established
that such trials could be conducted by military commissions not because of Congress's Article I powers, but because the
rights to grand jury indictment and trial by petit jury - which would otherwise bar the exercise of military jurisdiction -
simply did not apply to offenses committed by enemy belligerents against the law of war. Whatever the logic or
convincingness of these holdings, or the myriad questions that they left unanswered, subsequent decisions would
solidify their vitality as precedent.

C. Quirin's Subsequent History: Yamashita to Madsen

Indeed, the Court adhered quite closely to (and quoted heavily from) Quirin in its next military commission case - In re
Yamashita, decided in February 1946. n129 Yamashita was convicted of war crimes and sentenced to death by an
American military commission for his failure to prevent a flood of abuses committed by Japanese soldiers under his
command as the United States overran the Philippines. n130 The Court affirmed Yamashita's conviction and sentence
(albeit this time over strong dissents), n131 relying largely on Quirin. As Chief Justice Stone described,
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4 J. Nat'l Security L. & Pol'y 295, *319

[In Quirin,] we had occasion to consider at length the sources and nature of the authority to create military commissions
for the trial of enemy combatants for offenses against the law of war. We there pointed out that Congress, in the
exercise of the power conferred upon it by Article I, § 8, Cl. 10 of the Constitution to "define and punish ... Offenses
against the Law of Nations ... ," of which the law of war is a part, had by the Articles of War recognized the "military
commission" appointed by military command, as it had previously existed in United States Army practice, as an [*320]
appropriate tribunal for the trial and punishment of offenses against the law of war. n132

Thus, Stone explained, Congress "adopted the system of military common law applied by military tribunals so far as it
should be recognized and deemed applicable by the courts, and as further defined and supplemented by the Hague
Convention, to which the United States and the Axis powers were parties." n133 Yamashita thereby reasserted the Law
of Nations Clause rationale articulated in Quirin, distinguishing Milligan (as had Quirin) on the ground that Yamashita's
commission had authority "only to try the purported charge of violation of the law of war committed by petitioner, an
enemy belligerent, while in command of a hostile army occupying United States territory during time of war." n134
Concluding that the laws of war tolerated the continued use of military commissions after the formal cessation of
hostilities; n135 that Yamashita was properly charged with offenses against the laws of war; n136 and that his trial had
not run afoul of any constitutional or treaty-based procedural protections; n137 the Court affirmed his conviction and
death sentence. n138

Just three weeks later, though, the same Court reinforced the narrowness of the Quirin exception to Milligan in
Duncan v. Kahanamoku. n139 There, a 6-2 Court invalidated the use of "provost courts" to try two civilians for petty
offenses in Hawaii in August 1942 and March 1944, respectively, even though the territory was still technically under
martial law at the time of the defendants' crimes. n140 Justice Black's opinion for the majority rested on statutory
interpretation, reading the "martial law" authorized by Section 67 of Hawaii's Organic Act n141 as not including the
power to subject civilians to military trial for non-military offenses - at least partially in light of Milligan, a decision
with which Congress would have been familiar at the time the Organic Act was enacted. n142 What was implicit in
Black's majority opinion, though, was made explicit by Justice [*321] Murphy's concurrence: that the Constitution
barred the trials in Hawaii whether or not the Organic Act permitted them, and that Milligan's "open court" rule
survived Quirin (indeed, Murphy's opinion does not cite Quirin once). n143 Instead, Duncan suggested that, where the
defendant was unquestionably a "civilian," Milligan remained good law: where the civilian courts were open and
functioning, military jurisdiction was constitutionally foreclosed.

Duncan was not the Court's last word on World War II-era military commissions. In Hirota v. MacArthur, n144 the
Court turned away for lack of jurisdiction a series of "original" habeas petitions filed by Japanese citizens seeking to
challenge their convictions by the International Military Tribunal for the Far East. n145 In Johnson v. Eisentrager, n146
the Court held that non-citizens held outside the territorial United States who had been properly convicted by a
duly-convened military commission had no right to pursue habeas corpus relief in the United States. n147 And in
Madsen v. Kinsella, n148 the Court sustained the use of a military commission in what was then occupied Germany to
try the civilian wife of a servicemember for her husband's murder, in violation of the German Criminal Code. Writing
for an 8-1 Court in Madsen, Justice Burton explained that the law of war "includes at least that part of the law of nations
which defines the powers and duties of belligerent powers occupying enemy territory pending the establishment of civil
government," n149 and so Madsen's military commission trial for ordinary crimes in occupied territory was consistent
with Article 15, at least as interpreted in Quirin and Yamashita. n150

In none of these cases, however, did the Court revisit Quirin's constitutional analysis as to the sources of Congress's
authority to subject specific offenses to trial by military commission, or the limits imposed by the Constitution's
grand-and petit-jury protections. Because Article 15 merely incorporated whatever the laws of war authorized, Quirin's
statutory and constitutional analyses of whether a military commission was legally authorized merged into a single,
law-of-war-based question that went to the jurisdiction of military commissions over both the offender and the offense.

[*322]
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4 J. Nat'l Security L. & Pol'y 295, *322

D. Hamdan

Thus, when President Bush created military commissions pursuant to the November 2001 Military Order, n151 one of
the central questions became whether the commissions were consistent with what Congress had authorized - whether
they were only empowered to try offenses and offenders triable by military commission under the laws of war. n152
Acting under the order, the President designated six unnamed detainees for trial by military commission in July 2003.
n153 The first formal charges were revealed a little over one year later, when Salim Hamdan was charged with the
crime of "conspiracy." n154 Hamdan subsequently brought a habeas petition challenging the legality of his impending
trial. n155 After the lower courts divided on the merits of Hamdan's claims, n156 the Supreme Court granted certiorari
in November 2005, and heard argument in March 2006. n157

[*323] On the merits, the Court held that the commissions created pursuant to President Bush's Military Order
exceeded the authority that Congress had delegated through Article 21 (Article 15's successor) of the UCMJ. As Justice
Stevens explained at the outset of Part IV of his lengthy opinion, "We have no occasion to revisit Quirin's controversial
characterization of Article of War 15 as congressional authorization for military commissions." n158 After all, "even
Quirin did not view the authorization as a sweeping mandate for the President to "invoke military commissions when he
deems them necessary.'" n159 Instead, as Stevens explained, Quirin "recognized that Congress had simply preserved
what power, under the Constitution and the common law of war, the President had had before 1916 to convene military
commissions - with the express condition that the President and those under his command comply with the law of war."
n160

In Hamdan's case, then, the question became whether "conspiracy" was properly triable by a military commission.
And since "there is no suggestion that Congress has, in exercise of its constitutional authority to "define and punish ...
Offences against the Law of Nations,' positively identified "conspiracy' as a war crime," n161 the inquiry instead
devolved into whether such an offense was generally recognized as a violation of the laws of war. This inquiry, Stevens,
reasoned, must turn on the existence of clearly established precedent. In his words,

When ... neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the
precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a
degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution. n162

[*324] Indeed, even in those jurisdictions that still recognize common-law crimes, n163 Stevens explained, "an act
does not become a crime without its foundations having been firmly established in precedent," n164 a caution that is
"all the more critical when reviewing developments that stem from military action." n165

With these admonitions in mind, Stevens turned to the specific offense of conspiracy, noting that it "has rarely if
ever been tried as such in this country by any law-of-war military commission not exercising some other form of
jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions - the major treaties on the
law of war." n166 After reviewing and rejecting various examples offered by the government (and by Justice Thomas in
dissent), n167 Stevens went on to explain that "international sources confirm that the crime charged here is not a
recognized violation of the law of war," n168 citing various treaties and decisions of international courts, n169
including the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY). n170 As such,
"Because the charge does not support the commission's jurisdiction, the commission lacks authority to try Hamdan."
n171

[*325] Justice Stevens went on in Part VI of his opinion to identify additional infirmities in Hamdan's trial arising
out of the lack of conformity between the commission's procedures, on the one hand, and the UCMJ and the Geneva
Conventions, on the other. n172 As relevant here, though, his analysis of whether the offense of conspiracy is triable as
a violation of the laws of war takes Quirin to its logical stopping point (if not a bit beyond). Where Congress has only
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4 J. Nat'l Security L. & Pol'y 295, *325

authorized military commissions consistent with the laws of war, Hamdan seems to establish that the President has very
little authority to deviate from what those laws have been held to proscribe.

E. The Military Commissions Acts of 2006 and 2009

The Court in Hamdan went out of its way to suggest that Congress could provide at least some of the statutory
authority for military commissions that the Court had found lacking. n173 Four months later, Congress obliged,
enacting the Military Commissions Act of 2006. n174 In addition to providing sweeping substantive authority for
military commission trials, n175 the MCA also purported to bar invocation of the Geneva Conventions as a "source of
rights" in any litigation, n176 and to preclude the federal courts from entertaining any lawsuits challenging the detention
or trial by military commission of non-citizens held as "enemy [*326] combatants," other than the narrow statutory
appeals already provided by the Detainee Treatment Act of 2005 (DTA). n177

Of particular salience here, the MCA of 2006 specifically defined the offender and offense jurisdiction of the
commissions it established. To that end, the 2006 MCA created 10 U.S.C. § 948d(a), which provided that "A military
commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of
war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001." And 10 U.S.C. §
948a(1) defined "unlawful enemy combatant" as, inter alia, "a person who has engaged in hostilities or who has
purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful
enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." n178

As various international law scholars have explained, though, "emerging international standards appear to prohibit
the prosecution of indirect participant and nonparticipant civilians before military tribunals [with exceptions not here
relevant]." n179 That statement does little to elucidate the critical line between "direct" and "indirect" participation,
n180 but at least where it is clear that the individual in question is at most an indirect participant, the laws of war seem
to preclude trial by military commission. Thus, while the first clause of § 948a(1) is superficially untroubling, the
second clause raises the very distinct possibility that individuals who are (at most) indirect participants in hostilities
might still [*327] be subjected to trial by military commission. n181 This possibility was only heightened by the
Military Commissions Act of 2009, n182 which expanded the definition of those subject to trial to include any
non-citizen who "was a part of al Qaeda at the time of the alleged offense under this chapter," n183 without elaborating
on what it means to be "a part of al Qaeda."

In addition to its sweeping definition of who could be tried by military commissions, the 2006 MCA also codified
28 separate substantive offenses triable by military commissions. n184 Before defining the specific crimes, though, the
statute set forth its "purpose" to "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." n185 And to reinforce the point, the next subsection (which was 10 U.S.C. § 950p(b)) provides
that "the provisions of this subchapter ... are declarative of existing law," and so "do not preclude trial for crimes that
occurred before the date of the enactment of this chapter." n186 These two provisions seem particularly curious given
that, in addition to traditional war crimes, the 2006 MCA also included as substantive offenses the crimes of
"terrorism," n187 "providing material support for terrorism," n188 and, notwithstanding Hamdan, "conspiracy." n189
And although the 2009 MCA slightly tweaked some of the language, it reenacted as standalone offenses the same three
crimes (along with 26 others). n190

The Military Commissions Acts of 2006 and 2009 have thereby raised in sharp relief two questions that the
Supreme Court has not yet had to answer: May Congress define a violation of the law of nations not recognized by the
law of nations itself? Even if the answer is yes, may [*328] Congress subject such violation to trial by military
commission? n191 It is to these questions that this article now turns. n192

III. The Laws of War as a Constitutional Constraint


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Parts I and II established a series of distinct but related propositions that bear rehashing here: First, Congress's power
over the offense jurisdiction of military courts generally derives from Article I, Section 8. As with any federal crime,
Congress must have the constitutional authority to proscribe the relevant underlying conduct. Second, Congress's power
over the offender jurisdiction of military courts also derives from Article I, Section 8. Although many of the powers in
Article I, Section 8 impose no constraints on who can be subjected to trial, some, like the Make Rules Clause, have been
held to do so. Third, Congress's powers over both the offense and offender jurisdiction of military courts are constrained
not only by the internal textual limits of Article I, but also by the external limits imposed by the grand-and petit-jury
requirements of Article III and the Sixth Amendment, at least when they apply.

With these points in mind, the question becomes two-fold: How, if at all, does Article I, Section 8 constrain the
offense and offender jurisdiction of military commissions? And how, if at all, do the grand-and petit-jury requirements
of Article III and the Fifth and Sixth Amendments constrain the offense and offender jurisdiction of military
commissions?

At least with regard to the Article I, Section 8 issue, the Supreme Court's case law provides no definitive resolution,
but important clues. As Quirin itself recognized, Congress's power to subject to trial offenses against the law of war by
non-servicemembers comes from the Law of Nations Clause - and not any other source of Article I authority. Although
other powers might be implicated with regard to the use of military tribunals in other contexts (for example, occupation
courts, as in Madsen v. Kinsella), Congress's authority to enact statutes like the MCA comes entirely from the Law of
Nations Clause. n193

[*329] That conclusion, though, only begs another question: Does Congress have the authority under the Law of
Nations Clause to "define" offenses that are not generally understood by the international community to constitute
violations of the laws of war? As this Part will demonstrate, whether Congress has the power to subject to trial by
military commission offenses or offenders that are not clearly triable under the laws of war depends both on the degree
of deference to which Congress is entitled in exercising such Article I authority and the relevance vel non of other
constitutional constraints on the exercise of military jurisdiction. Thus, even though there is some room for
disagreement about the deference to which Congress is entitled under the Law of Nations Clause, and even though it is
possible that there might be other sources of authority for conferring offense and offender jurisdiction upon military
commissions, the grand-and petit-jury requirements of Article III and the Fifth and Sixth Amendments do more of the
work in constraining those powers than has previously been appreciated.

A.

"Define and Punish": The Original Understanding

Perhaps unsurprisingly, questions as to the scope of Congress's power "To define and punish ... Offences against the
Law of Nations" arose almost as soon as the language was proposed at the 1787 Constitutional Convention. As is clear
from historical sources, after the Convention entertained a series of proposals relating to the need for a legislative power
to punish piracy (and other maritime offenses), counterfeiting, and offenses against the law of nations, the Committee
on Style reported out the following provision: "The Congress ... shall have power ... To define and punish piracies and
felonies committed on the high seas, and punish offenses against the law of nations." n194 As Professor Beth Stephens
has explained, "This language, with the distinction between the power to "define and punish' piracy and felonies on the
high seas, but only "punish' offenses against the law of nations, produced the only substantive debate on the offenses
section of the Clause." n195 Specifically,

[Gouverneur] Morris moved to strike the word "punish" before "offenses agst. the law of nations," so that the laws
would "be definable as well as punishable, by virtue of the preceding member of the sentence." [James] Wilson argued
against the change, stating: "To pretend to define the law of nations which depended on the authority of all the Civilized
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4 J. Nat'l Security L. & Pol'y 295, *329

Nations of the World, would have a look of arrogance[] that would make us ridiculous." Morris [*330] replied by
suggesting that "define" was intended to suggest the need to provide detail, not to create offenses where none had
previously existed: "The word define is proper when applied to offenses in this case; the law of nations being often too
vague and deficient to be a rule." The change was accepted by a vote of six to five, and the Clause adopted as it now
stands, granting Congress the power "to define and punish Piracies and Felonies committed on the high Seas, and
offenses against the law of nations." n196

Thus, "The debates at the Constitutional Convention made clear that Congress would have the power to punish only
actual violations of the law of nations, not to create new offenses." n197

Early interpretations of comparable provisions appeared to reinforce this view. For example, in United States v.
Furlong, n198 the Court considered whether "murder committed at sea on board a foreign vessel be punishable by the
laws of the United States, if committed by a foreigner upon a foreigner." n199 The 1790 Crimes Act made it a criminal
offense for "any person or persons [to] commit upon the high seas ... murder or robbery, or any other offence which if
committed within the body of a county, would by the laws of the United States be punishable with death," n200 and the
question in Furlong was whether Congress had the power to so provide pursuant to its Article I authority "to define and
punish Piracies and Felonies committed on the high Seas." Writing for a unanimous Court, Justice Johnson answered
that question in the negative:

Had Congress, in this instance, declared piracy to be murder, the absurdity would have been felt and acknowledged; yet,
with a view to the exercise of jurisdiction, it would have been more defensible than the reverse, for, in one case it would
restrict the acknowledged scope of its legitimate powers, in the other extend it. If by calling murder piracy, it might
assert a jurisdiction over that offence committed by a foreigner in a foreign vessel, what offence might not be brought
within their power by the same device? The most offensive interference with the governments of other nations might be
defended on the precedent. n201

[*331] More directly on point, Attorney General James Speed, in an 1865 opinion concerning the legality of trying the
Lincoln assassination conspirators before military tribunals, n202 reached a similar conclusion about the limits on
Congress's power to give substantive content to the law of nations. After rejecting the possibility that Congress could
use its power under the Make Rules Clause to create military commissions, n203 Speed turned to the Law of Nations
Clause:

That the law of nations constitutes a part of the laws of the land, must be admitted. The laws of nations are expressly
made laws of the land by the Constitution, when it says that "Congress shall have power to define and punish piracies
and felonies committed on the high seas, and offences against the laws of nations.' To define is to give the limits or
precise meaning of a word or thing in being; to make is to call into being. Congress has power to define, not to make,
the laws of nations; but Congress has the power to make rules for the government of the army and navy. n204

But perhaps the most sustained consideration of the scope of Congress's power under the Law of Nations Clause came
in United States v. Arjona, n205 an 1887 decision in which the Supreme Court upheld a federal statute criminalizing the
counterfeiting of foreign government securities. n206 As Chief Justice Waite explained, "the obligation of one nation to
punish those who, within its own jurisdiction, counterfeit the money of another nation has long been recognized [under
the law of nations]." n207 To that end,

This statute defines the offense, and if the thing made punishable is one which the United States are required by their
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4 J. Nat'l Security L. & Pol'y 295, *331

international obligations to use due diligence to prevent, it is an offense against the law of nations... . Whether the
offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that
effect by congress. n208

As one commentator recently observed, Arjona thereby established three significant propositions about the Law of
Nations Clause: First, [*332] Congress does not need to expressly invoke the Law of Nations Clause when legislating
pursuant thereto. Second, the Law of Nations Clause turns on the scope of the Law of Nations at the time of the relevant
statute, and not as it existed at the Founding. Third, the Clause "not only allows Congress to act against direct violations
of the law of nations, but also allows Congress to criminalize acts a step removed from the demands of international
law." n209 After all, "An individual counterfeiter is not violating international law, since the duty to prevent
counterfeiting rests with states, not individuals." n210

Even in Arjona, though, there was no quarrel with Chief Justice Waite's central legal conclusion, i.e., that the
counterfeiting of foreign currency was a violation of the law of nations. Arjona had no need to address the true question
raised by the Law of Nations Clause: how much leeway does Congress have in deciding that a particular offense is a
violation of the law of nations?

B. Competing Views on the Degree of Legislative Latitude

The Supreme Court has provided no further guidance as to Congress's leeway under the Law of Nations Clause in the
122 years since Arjona was decided, leaving to the academics the debate over the amount of deference to which
Congress is entitled. n211 In an exhaustive article in 2000, Professor Beth Stephens concluded that the deference due
Congress under the Law of Nations Clause was comparable to the deference (in the form of the rational basis test) that
Congress ordinarily receives in identifying appropriate circumstances for the exercise of its other enumerated powers -
such as, for example, its power "To regulate Commerce ... among the several States." n212 As Stephens put it, "in
deciding what falls within the reach of the Clause, Congress's decisions are entitled to significant deference from the
judiciary." n213 Professor Eugene Kontorovich has advanced a comparable claim, concluding that "Congress's Article I
authority under the Define and Punish Clause requires that the conduct it punishes either have some connection to the
United States, or else be piracy or some other offense clearly treated as universally cognizable through the general
consent of nations." n214

[*333] In marked contrast, Professor Charles Siegal argued in an influential 1988 article that Congress is entitled
to little or no deference in identifying the substantive content of the law of nations when exercising its authority under
the Law of Nations Clause. n215 As Siegal explained,

Judicial consideration of the congressional definition of an offense is based on the principle implicit in the offenses
clause itself, that an international norm exists. The [Law of Nations Clause] differs from many other constitutional
provisions in that it contains not only its own standard against which to measure congressional action, but a specifically
legal standard at that. Similarly, there is an obvious distinction between Congress' decision to impose criminal sanctions
on the violation of an established norm, such as slavery, and its decision that there is a norm. Finally, the congressional
determination that a certain act constitutes an offense against the law of nations contains nothing of the political
character of the executive determinations that supported the discretion given to the President in [cases like] Zemel v.
Rusk, Haig v. Agee and Regan v. Wald. Accordingly, a deferential standard of review will almost never be appropriate.
n216

Rejecting the seeming absolutism of both Stephens's and Siegal's approaches, a recent student note n217 offered an
intermediate position based largely on the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain. n218
Specifically, the note advocated a multi-faceted approach: "A court would first examine the degree of international
consensus behind the rule, momentarily disregarding the United States' stance on the rule." n219 Then, courts "would
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examine the context and character of Congress's action to determine whether the statute can be seen as a means of
conforming to or advancing a rule of international law." n220 At that step, evidence that the United States had
previously accepted the rule as a binding rule of international law would counsel in favor of having it fall [*334]
within the scope of the Law of Nations Clause, whereas evidence that the United States had rejected such a rule would
militate against such a conclusion. n221 Courts would then consider "the combined weight of the conclusions it reached
in its separate examinations of the strength of international consensus and the character of Congress's actions." n222

The note then illuminated the proposal with three slightly more specific examples, reasoning that (1) a "firmly
entrenched rule of customary international law would almost always support legislation under the [Law of Nations]
Clause"; n223 (2) a rule based on a "moderately strong international consensus" would "stand or fall depending on the
character of Congress's action"; n224 and (3) "an international law rule that was backed by only a slim international
consensus could not support an exercise of Offences Clause power, even if it was clear that the statute committed the
United States to the rule of international law." n225 Of course, much would depend on the particular category into
which specific legislation falls, since Congress would presumably believe that virtually every exercise of its Law of
Nations Clause power was to codify a "firmly entrenched rule of customary international law."

Yet, whatever the merits of these competing views on the appropriate latitude to which Congress is entitled in
defining offenses against the law of nations as a general matter, none of the commentators considered two specific
variations of prominence here: Congress's power to proscribe offenses against the laws of war - a body of customary
international law that has developed and substantially crystallized over the past half-century; and the additional
limitations that might constrain Congress's power to subject such offenses to military, rather than civilian, jurisdiction.

C. The Crystallization of International Humanitarian Law

One need not be a scholar of international humanitarian law (IHL) to recognize the degree to which that subset of
customary international law has become far more concrete in decades since the end of World War II, beginning with the
drafting and ratification of the four Geneva Conventions of 1949. Indeed, although Professor Roger Alford described
the period from 1944 to 1959 as the "humanitarian period," during which norms of [*335] IHL began rapidly to
crystallize, n226 it is more recent developments, especially the creation of ad hoc (and now permanent) international
criminal tribunals, that has helped accelerate the move toward positive law in the context of the laws of war, rather than
a series of loosely articulated - if universally accepted - norms. n227 Thus, as Professor Allison Danner recently
explained, the past fifteen years have witnessed "the judicialization of international relations," as "international judicial
decisionmaking has increased dramatically," thanks largely to the tacit delegation of lawmaking authority by states to ad
hoc international criminal tribunals via the United Nations Security Council, and to the International Criminal Court
(ICC) via the Rome Statute. n228 The emerging jurisprudence of these bodies has allowed for the slow - but steady -
development of a jurisprudence articulating and refining distinct principles of international criminal law (including
violations of international humanitarian law). n229

From the United States' perspective, the effects of this crystallization is perhaps nowhere better manifested than in
Congress's enactment of the War Crimes Act of 1996, n230 which was intended specifically to incorporate our
obligations under the 1949 Geneva Conventions to provide penal sanctions for violations thereof. n231 Citing Quirin
and Yamashita for the proposition that "the constitutional authority to enact federal criminal laws relating to the
commission of war crimes is undoubtedly the same as the authority to create military commissions to prosecute
perpetrators of these crimes," n232 Congress created civilian criminal jurisdiction for "grave breaches" of the Geneva
Conventions, authority it expanded in 1997 to cover an even wider class of "war crimes." n233 Such authority was
necessary, Congress suggested, both to provide a mechanism for prosecuting perpetrators of war crimes against
Americans, and to provide a means of [*336] redressing war crimes committed by American servicemembers who are
discharged prior to being charged. n234

The War Crimes Act is instructive in at least two respects: First, it helps to demonstrate how the crystallization of
international law in general (and the laws of war in particular) affects Congress's power under the Law of Nations
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Clause, albeit affirmatively, in this case, rather than as a constraint. Second, as the House Report accompanying the
statute pointed out, it was not entirely clear that Congress's power to proscribe the offenses prohibited by the War
Crimes Act automatically meant that it could subject such conduct to trial by court-martial or military commission.
n235 The safer route, then, was to empower the civilian criminal courts to hear such cases, leaving questions about the
propriety of military jurisdiction for another day.

D. The Forgotten Significance of the Jury Trial Protections

Separate from the increasing crystallization of international law, which would serve generally to constrain Congress's
deference under the Law of Nations Clause, n236 is the specific question as to the circumstances in which Congress
may use the Law of Nations Clause to subject particular offenses to military jurisdiction. Put another way, whether or
not Congress can proscribe particular conduct pursuant to the Law of Nations Clause as a general matter, under what
circumstances may it subject such offenses to the criminal jurisdiction of military - rather than civilian - courts?

It is here that the case law extensively surveyed in Parts I and II figures so prominently, for the Supreme Court's
jurisprudence with respect to the constitutional limits on military jurisdiction reveals a point largely lost to
contemporary commentators: Article I actually has very little to say about the appropriateness of military versus civilian
jurisdiction; instead, the critical analysis must center on the grand-and petit-jury trial protections of Article III and the
Fifth and Sixth Amendments, and the scope of the exceptions thereto identified by the Supreme Court.

The exception for "cases arising in the land and naval forces" is perhaps the easiest to deal with. Although it
appears only in the Grand Jury Indictment Clause of the Fifth Amendment, the Milligan Court, albeit in dicta, read such
an exception into the Sixth Amendment's right to trial by petit jury, as well, n237 and the Supreme Court has long since
confirmed that reading as authoritative. n238 Congress can almost surely subject to trial by [*337] court-martial any
offense it could subject to trial in the civilian courts, where the offender is a servicemember, under the Law of Nations
Clause. (Of course, thanks to Solorio, Congress could just as easily so provide under the Make Rules Clause.)

The far harder - and more important - exception is the one for the grand-and petit-jury rights identified in Quirin,
for "offenses committed by enemy belligerents against the law of war." n239 As Chief Justice Stone elaborated,
"[Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a
jury to trials by military commission, or to have required that offenses against the law of war not triable by jury at
common law be tried only in the civil courts." n240

And yet, the existence of an exception for "offenses committed by enemy belligerents against the law of war" says
nothing as to its scope. Indeed, one might well wonder if the analysis of the two questions merges into one answer - that
the power to define a violation of the law of nations is itself the power to identify an "offense[] committed by [an]
enemy belligerent[] against the law of war." If we had no further elaboration, that answer might well prove tempting.
But consider in this light the Court's discussion of the significance of the jury trial right in Toth. As Justice Black there
suggested, "Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our
history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost
care." n241 Thus, the Court concluded, "Determining the scope of the constitutional power of Congress to authorize
trial by court-martial presents another instance calling for limitation to "the least possible power adequate to the end
proposed.'" n242

What Toth and the other court-martial decisions suggest is the appropriateness of a lenity-based approach to the
jury trial exception identified in Quirin. That is to say, wholly separate from the scope of Congress's power to define
offenses against the law of nations, the Supreme Court's understanding of the circumstances in which military
jurisdiction will be appropriate calls for the narrowest construction of those circumstances as is fairly possible. It is not
that the Law of Nations Clause itself should be carefully circumscribed, but that the law-of-war-based exception to
Article III and the Fifth and Sixth Amendments should be limited to the narrowest defensible terms - that Quirin's
holding that the Constitution does not bar the trial by military commission of "offenses committed by enemy
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belligerents against the law of war" should be strictly construed. The defendants should clearly be "belligerents" under
the laws [*338] of war, and the offense should clearly be a recognized violation of the laws of war. n243

Congress may have some leeway to subject less well established offenses (or offenses committed by less well
established belligerents) to prosecution in the civilian criminal courts, but fundamental principles of American
constitutional law, as articulated in numerous Supreme Court decisions construing the constitutional limits of military
jurisdiction, compel the conclusion that any exception justifying trial in a military court be founded on the clearest of
precedent. To borrow once more from Justice Stevens's opinion in Hamdan, "The caution that must be exercised in the
incremental development of common-law crimes by the judiciary is... all the more critical when reviewing
developments that stem from military action." n244

This conclusion - that the jury trial protections in Article III and the Fifth and Sixth Amendments are the vital
constraints on military jurisdiction - also helps to explain why arguments for other potential sources of governmental
authority are beside the point. Thus, although some might argue that Congress could use the "Captures" Clause of
Article I to define particular offenses, n245 or that the President might have inherent authority under Article II to create
military commissions, n246 both of these claims run into the same jury trial constraints identified above. Although
either of these sources may be argued to provide authority in at least some cases for creating offense or offender
jurisdiction, neither can overcome the constraints of Article III and the Fifth and Sixth Amendments - at least in cases in
which those constraints apply.

Even the government's arguments in the current military commission cases have neglected these concerns, focusing
instead on the claim that Congress has the power to codify offenses based upon the "domestic [*339] common law of
war." n247 Whether that argument is persuasive in the abstract - as going to Congress's power to create offenses triable
in civilian courts - it is hardly responsive to the concerns articulated herein.

E. Revisiting the Military Commissions Acts of 2006 and 2009

With a rule of interpretive lenity as the governing consideration, the flaws in the Military Commissions Acts of 2006
and 2009 come into stark relief. Both Acts authorize the exercise of offender jurisdiction over individuals who are either
indirect participants or nonparticipants in hostilities, even though IHL today appears to prohibit their prosecution before
a military commission. n248 The MCA of 2009 authorizes the trial of an individual who "was a part of al Qaeda at the
time of the alleged offense under this chapter," n249 but there is no requirement anywhere in the statute that an
individual be a "belligerent" under IHL in order to be "part of al Qaeda."

Even more troubling are many of the substantive offenses defined by the 2006 and 2009 statutes. Justice Stevens's
analysis in Hamdan calls into serious question whether conspiracy is sufficiently well-established to satisfy the high
standard articulated above, and there is even less precedent at the international level for categorically treating
"terrorism" or "providing material support for terrorism" as violations of the laws of war. n250 Indeed, one need only
observe the widespread and ongoing debate over whether terrorism as a standalone offense should be included within
the jurisdiction of the International Criminal Court to see just how open a question it is - and how divided foreign and
international authorities are. n251 To support Congress's power to both proscribe terrorism as a violation of the law of
nations and to subject it to trial by military commission is to run roughshod over the constraints that the Supreme Court
has identified over decades of case law on the limits of military jurisdiction - and with potentially grave consequences.
After all, as Justice Black warned in Toth, "There are dangers lurking in military trials which were sought to be avoided
by the [*340] Bill of Rights and Article III of our Constitution." n252 Whatever the merits of the exception to those
protections identified by the Court in Quirin, there is every reason to construe that exception narrowly, and to require
more than just scattershot support in historical practice before allowing Congress to subject to trial by military
commission offenses that have not yet crystallized as violations of the laws of war.

Two last points bear consideration. First, for as significant as the Constitution's grand-and petit-jury protections are
to the above analysis, I suspect that some will argue that non-citizens detained outside the territorial United States
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(whether or not that category includes those still detained at Guantanamo) are not entitled to the protections of these
constitutional provisions, and so all of this analysis is much ado about nothing. Just as Chief Justice Rehnquist's
plurality opinion in Verdugo-Urquidez suggested that the Fourth Amendment does not protect non-citizens outside the
United States, n253 might it not be suggested for the Fifth Amendment n254 - and perhaps even the Sixth? n255

My responses to this argument are brief. Quirin itself declined to rest on the fact that the defendants were not
"legally" present within the United States (having surreptitiously crossed enemy lines - indeed, that was the entire
point), relying instead on the exception of such central significance here. Moreover, whether a non-citizen in U.S.
custody is protected by the Fourth and Fifth Amendments while detained without charges strikes me as a far different
question from whether constitutional protections going to the fundamental fairness of a trial attach once the U.S.
government affirmatively decides to commence criminal proceedings. n256

Of course, one who falls within the law-of-war exception identified in Quirin will not find those protections to be
particularly useful, but the critical point here is that it is that exception, and not a categorical rule based upon citizenship
and location, that provides the essential prerequisite to the proper exercise of military jurisdiction.

Second, there is one important counterexample to the analysis contained herein: the Supreme Court's recognition in
Quirin that spying behind enemy lines during wartime, although not a violation of the laws of war per se, had
traditionally been triable by military commissions - and [*341] without a jury. n257 One possible response is that
spying behind enemy lines is unique; a sui generis offense that, although not technically a war crime, can only take
place in contexts in which military jurisdiction is far less controversial. But whether that is a convincing rejoinder or
not, the conclusion that spying behind enemy lines is an offense triable by military commission is a modest one, and
hardly requires the result that Congress can therefore subject virtually any offense to trial by military jurisdiction. For
better or worse, the Supreme Court has never accepted the proposition that Congress can subject to trial (let alone to
trial by military commission) offenses that only it believes are violations of the law of nations. If anything, Quirin hints
strongly to the contrary.

Conclusion

None of the above analysis is meant to suggest that Quirin got it right - that the constitutional rights to grand jury
indictment and trial by petit jury should tolerate an atextual exception for "offenses committed by enemy belligerents
against the laws of war." Quirin is rightly criticized by virtually all who study it as an unfortunate decision borne out of
unique and fortuitous circumstances, and one should not take its signal importance to the present analysis as signifying
any endorsement of the underlying validity of its reasoning. To my mind, there is much to commend the "open court"
rule of Milligan, and the burden should be on the government, as a policy matter at least if not a constitutional one, to
explain why trial by ordinary civilian criminal processes is inadequate even in those cases in which there is a plausible
claim that the defendants are properly subject to the laws of war. n258 Otherwise, the government leaves the impression
that the resort to military process is but the means to a predetermined end, "an impression," to paraphrase another
decision in a post-9/11 detention case, that I "would have thought the government could ill afford to leave extant." n259

This article is about the contemporary reality created by the Supreme Court's military jurisdiction jurisprudence,
rather than a view as to what the law should be. And within that jurisprudence, there are lessons that have been lost -
and that it would behoove us to revisit - about the relationship between Congress's power to subject offenses to trial by
military courts and the Constitution's limits on such jurisdiction. Notwithstanding suggestions to the contrary, n260 the
constitutionality of the Military Commissions Acts of [*342] 2006 and 2009 is not settled by Congress's self-serving
ipse dixit in each statute that it was doing nothing new. Even if Article I tolerates such a naked arrogation of power,
Article III and the Fifth and Sixth Amendments do not - and never have.

Legal Topics:

For related research and practice materials, see the following legal topics:
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4 J. Nat'l Security L. & Pol'y 295, *342

Civil ProcedureAppealsAppellate JurisdictionState Court ReviewConstitutional LawBill of RightsGeneral


OverviewMilitary & Veterans LawWarfare

FOOTNOTES:

n1. See Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001).

n2. The original order included no territorial limitation. Nonetheless, to date, only one non-citizen - Ali
Saleh Kahlah al-Marri - has been detained by the military without civilian criminal proceedings within the
territorial United States. See Jane Mayer, The Hard Cases: Will Obama Create a New Kind of Preventative
Detention for Terrorist Suspects?, New Yorker Feb. 23, 2009, available at
http://www.newyorker.com/reporting/2009/02/23/ 090223fa_fact_mayer.

n3. The offenses were subsequently articulated in "Military Commission Instruction No. 2." See 32 C.F.R. §
11.6(c)(6) (2005) (defining conspiracy as an offense); see also Crimes and Elements of Trials by Military
Commission, 68 Fed. Reg. 39,381 (July 1, 2003).

n4. For the internal controversy, see Barton Gellman, Angler: The Cheney Vice Presidency 162-176 (2008).

n5. For early commentary on both sides, contrast Neal K. Katyal & Laurence H. Tribe, Waging War,
Deciding Guilt: Trying the Military Tribunals, 111 Yale L.J. 1259 (2002), with Curtis A. Bradley & Jack L.
Goldsmith, The Constitutional Validity of Military Commissions, 5 Green Bag 2d 249 (2002).

n6. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

n7. See Military Commissions Act of 2009, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2574-2614
(codified in scattered sections of 10 U.S.C.); Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat.
2600 (codified as amended in scattered sections of 10, 18, and 28 U.S.C.). I use the acronym "MCA" throughout
this article to refer to the scheme created by the two statutes together, and identify the specific version at issue
only where necessary.
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4 J. Nat'l Security L. & Pol'y 295, *342

n8. See, e.g., Jane Mayer, The Trial: Eric Holder and the Battle over Khalid Sheikh Mohammed, New
Yorker, Feb. 15, 2010, at 52; see also Stephen I. Vladeck, Terrorism Trials and the Article III Courts After Abu
Ali, 88 Tex. L. Rev. 1501 (2010).

n9. Thus, as one recent example, the D.C. Circuit lifted a stay that had been entered by the district court,
holding that it was inappropriate to abstain from deciding the merits of a petitioner's challenge to his continuing
detention simply because he had been slated for trial by a military commission. Until and unless he was actually
charged and slated for trial, the Court of Appeals concluded, his habeas petition should go forward. See
Obaydullah v. Obama, 609 F.3d 444 (D.C. Cir. 2010).

n10. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010).

n11. See, e.g., 10 U.S.C. § 950t(25) (defining the offense of "providing material support" by reference to the
federal criminal statute - 18 U.S.C. § 2339A(b) - upheld in Humanitarian Law Project); see also id. § 948a(7)(B)
(defining as an "unprivileged enemy belligerent" any individual who "has purposefully and materially supported
hostilities against the United States or its coalition partners").

n12. See, e.g., Stephen I. Vladeck, On Jurisdictional Elephants and Kangaroo Courts, 103 Nw. U. L. Rev.
Colloquy 172 (2008) (critiquing a proposal to reform the military commissions for its failure to engage with the
central jurisdictional questions at issue).

n13. Even the CMCR has been slow to get to the merits. Other than its decision on the trial court's
jurisdiction in the Khadr proceedings, see United States v. Khadr, 1 M.C. 443 (C.M.C.R. 2007), the court has
not yet settled any major jurisdictional questions. In January 2010, it heard argument in the appeals in Hamdan
and al-Bahlul, both of which include challenges to the jurisdiction of the commissions. Decisions in both cases
remain pending as of this writing. For one of the few trial-court decisions rejecting a jurisdictional challenge on
the merits, see United States v. Hamdan, 2 M.C. 1 (2008).

n14. See, e.g., Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008) (rejecting appellate jurisdiction from
the CMCR); Khadr v. Obama, No. 04-1136, 2010 WL 2814416 (D.D.C. July 20, 2010) (abstaining from
deciding a pre-trial challenge to a military commission trial); Khadr v. Bush, 587 F. Supp. 2d 225 (D.D.C. 2008)
(same); Hamdan v. Gates, 565 F. Supp. 2d 130 (D.D.C. 2008) (same).
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4 J. Nat'l Security L. & Pol'y 295, *342

n15. But see Hamdan v. Rumsfeld, 548 U.S. 557, 585 n.16 (2006) ("We do not apply Councilman
abstention when there is a substantial question whether a military tribunal has personal jurisdiction over the
defendant.").

n16. It is tempting to describe "jurisdiction over the offense" and "jurisdiction over the offender" as,
respectively, "subject-matter" and "personal" jurisdiction (Indeed, the Supreme Court itself has done so in the
past, see, e.g., id.). Nevertheless, they are, for relevant purposes, two different species of subject-matter
jurisdiction, for reasons elaborated below. Moreover, this distinction is more than just a semantic one; whereas
defects in personal jurisdiction are ordinarily subject to waiver (and do not necessarily implicate the underlying
jurisdiction of the tribunal), defects in subject-matter jurisdiction are not - and are also open to collateral attack. I
thank Ingrid Wuerth for suggesting this important clarification (among countless others).

n17. U.S. Const. art. I, § 8, cl. 14 (empowering Congress "To make Rules for the Government and
Regulation of the land and naval Forces").

n18. Id. art. III, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury ... .");
id. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed, which district shall have
been previously ascertained by law ... .").

n19. Id. amend. V.

n20. See, e.g., Reid v. Covert, 354 U.S. 1 (1957) (plurality); United States ex rel. Toth v. Quarles, 350 U.S.
11 (1955).

n21. See Solorio v. United States, 483 U.S. 435, 441 (1987).

n22. Until 2006, the relevant federal statute (as interpreted by the Supreme Court) authorized military
commission jurisdiction over "offenders or offenses that by statute or by the law of war may be triable by such
military commissions." Ex parte Quirin, 317 U.S. 1, 27 (1942). Thus, unless the Constitution imposed stricter
limits than the laws of war (a proposition that the Quirin Court rejected), the Court would not have occasion to
reach the constitutional question until Congress (as it did in 2006) broadened the jurisdictional sweep of the
statute.
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4 J. Nat'l Security L. & Pol'y 295, *342

n23. U.S. Const. art. I, § 8, cl. 10.

n24. Id. cl. 11.

n25. For a fantastic and thorough treatment thereof, see Ingrid Wuerth, The Captures Clause, 76 U. Chi. L.
Rev. 1683 (2009).

n26. Also known as the Offenses (or Offences) Clause or the Define and Punish Clause, the Law of Nations
Clause has received increasing academic attention of late. See, e.g., J. Andrew Kent, Congress's
Under-Appreciated Power To Define and Punish Offenses Against the Law of Nations, 85 Tex. L. Rev. 843
(2007); Eugene Kontorovich, The "Define and Punish" Clause and the Limits of Universal Jurisdiction, 103 Nw.
U. L. Rev. 149 (2009); Beth Stephens, Federalism and Foreign Affairs: Congress's Power To "Define and
Punish ... Offenses Against the Law of Nations," 42 Wm. & Mary L. Rev. 447 (2000); Michael T. Morley, Note,
The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism, 112 Yale L.J. 109
(2003); Note, The Offences Clause After Sosa v. Alvarez-Machain, 118 Harv. L. Rev. 2378 (2005). For one of
the few older treatments, see Howard S. Fredman, Comment, The Offenses Clause: Congress' International
Penal Power, 8 Colum. J. Transnat'l L. 279 (1969).

n27. In a recent article, Professor Michael Stokes Paulsen suggested that this is a meaningless constraint,
since it is entirely up to Congress to give content to the law of nations. See Michael Stokes Paulsen, The
Constitutional Power To Interpret International Law, 118 Yale L.J. 1774, 1820 (2009) ("Congress must define
the "Offences'; the regime of international law may not dictate to Congress what those offenses may or must
be."); see also id. at 1821 ("It is worth pausing for a moment to absorb just how sweeping this legislative power
may be. Congress may define what it understands to be a violation of "the Law of Nations' and use this judgment
as the basis for legislative enactments."). As I explain below, whatever the answer is to the limits on Congress's
power to give content to the law of nations, the one thing that is clear is that Professor Paulsen's view is limitless
- if not altogether indefensible.

n28. 317 U.S. 1, 41 (1942).

n29. Critically, this point assumes that the jury trial protections in Article III and the Fifth and Sixth
Amendments apply to non-citizens held (and presumably tried) outside the territorial United States. I defend this
assumption - on which this article's analysis depends - in Part III, infra.
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4 J. Nat'l Security L. & Pol'y 295, *342

n30. Articles of Confederation of 1781 art. IX.

n31. The 1775, 1776, and 1786 Articles are reprinted in William Winthrop, Military Law and Precedents,
953-975 (2d ed. Beard Books 2000) (1896).

n32. U.S. Const. art. I, § 8, cl. 14. The provision was included in the final draft of the Constitution without
discussion or debate. See Reid v. Covert, 354 U.S. 1, 21 n.40 (1957) (plurality).

n33. See Act of Sept. 29, 1789, ch. 25, § 4, 1 Stat. 96; see also Loving v. United States, 517 U.S. 748, 752
(1996).

n34. U.S. Const. amend. V. The Supreme Court has long since rejected the argument that the "when in
actual service" clause applies to the "land or naval forces" in addition to the militia. See Johnson v. Sayre, 158
U.S. 109, 115 (1895). But see Solorio v. United States, 483 U.S. 435, 451 n.2 (1987) (Marshall, J., dissenting)
(suggesting that such a conclusion may be incorrect).

n35. See, e.g., Ex parte Reed, 100 U.S. 13 (1879); Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857); Martin v.
Mott, 25 U.S. (12 Wheat.) 19 (1827); Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Wise v. Withers, 7 U.S.
(3 Cranch) 331 (1806).

n36. In one exceptional decision, the U.S. Circuit Court for the District of Kentucky invalidated a Civil War
era Act of Congress that subjected military contractors to court-martial jurisdiction for fraud related to their
governmental contracts. See Ex parte Henderson, 11 F. Cas. 1067 (C.C.D. Ky. 1878) (No. 6349).

n37. See, e.g., Stephen I. Vladeck, Deconstructing Hirota: Habeas Corpus, Citizenship, and Article III, 95
Geo. L.J. 1497, 1509-1515 (2007) (noting the proliferation of habeas petitions by individuals detained overseas
filed after the end of World War II).
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4 J. Nat'l Security L. & Pol'y 295, *342

n38. Act of May 5, 1950, ch. 169, 64 Stat. 108 (codified as amended at 10 U.S.C.§§801 et seq.).

n39. 346 U.S. 137, 139 (1953) (plurality) ("In this case, we are dealing with habeas corpus applicants who
assert - rightly or wrongly - that they have been imprisoned and sentenced to death as a result of proceedings
which denied them basic rights guaranteed by the Constitution. The federal civil courts have jurisdiction over
such applications."). Although Chief Justice Vinson's opinion was only for a plurality, Justice Frankfurter was
alone among the other Justices in raising any question as to the federal courts' jurisdiction to entertain the
petitions. See infra note 42.

n40. The Court had previously expressed doubt as to its jurisdiction to entertain such petitions as an
"original" matter, see, e.g., Ex parte Betz, 329 U.S. 672 (1946) (mem.), and had instead implicitly suggested that
the proper forum was the federal district court, see In re Bush, 336 U.S. 971 (1949) (mem.). See generally
Vladeck, supra note 37, at 1514-1515 & n.94.

n41. See Ex parte Hayes, 414 U.S. 1327, 1328-29 (Douglas, Circuit Justice 1973) (noting that Burns
appeared to hold ""sub silentio and by fiat, that at least a citizen held abroad by federal authorities has access to
the writ in the District of Columbia'" (quoting Paul M. Bator et al. Hart & Wechsler's The Federal Courts and the
Federal System 359 n.52 (2d ed. 1973))).

n42. As Justice Frankfurter noted in an unusual dissent from the denial of rehearing in Burns, it was not at
all clear that the federal courts had statutory jurisdiction to entertain habeas petitions where the petitioner was
held outside the territorial jurisdiction of any district court - indeed, Ahrens v. Clark, 335 U.S. 188 (1948), had
suggested to the contrary. See Burns v. Wilson, 346 U.S. 844, 851-852 (1953) (Frankfurter, J., dissenting from
the denial of rehearing).

n43. See, e.g., Hiatt v. Brown, 339 U.S. 103, 111 (1950). Burns itself adopted the slightly broader "full and
fair consideration" standard, see, e.g., Sanford v. United States, 586 F.3d 28, 31-33 (D.C. Cir. 2009), although
several of the Justices believed that the scope of collateral review in court-martial cases should be even more
sweeping, see, e.g., Burns, 346 U.S. at 153-154 (Douglas, J., dissenting); id. at 848-849 (Frankfurter, J.,
dissenting from the denial of rehearing).

n44. Reid v. Covert, 354 U.S. 1, 35 (1957) (plurality).


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4 J. Nat'l Security L. & Pol'y 295, *342

n45. United States ex rel. Toth v. Quarles, 350 U.S. 11, 13 n.2 (1955). Specifically, Article 3(a) provided
that, "Subject to the provisions of article 43, any person charged with having committed, while in a status in
which he was subject to this code, an offense against this code, punishable by confinement of five years or more
and for which the person cannot be tried in the courts of the United States or any State or Territory thereof or of
the District of Columbia, shall not be relieved from amenability to trial by courts-martial by reason of the
termination of said status."

n46. Id. at 13-14 (citation and footnote omitted).

n47. Id. at 14-15 (footnotes omitted).

n48. Id. at 14 n.5.

n49. Id. at 15; Justices Reed, Burton, and Minton, dissented, with Reed and Minton both penning separate
opinions. See id. at 23-44 (Reed, J., dissenting); id. at 44-45 (Minton, J., dissenting). Both dissents harped on the
extent to which Toth's crime was committed while in the military service (and so "arose in the land or naval
forces"), along with the difficulties of exercising civilian criminal jurisdiction in such cases.

n50. Kinsella v. Krueger, 351 U.S. 470, 471 (1956); Reid v. Covert, 351 U.S. 487, 490 (1956).

n51. Justice Frankfurter wrote separately in both cases to note that he was "reserving for a later date an
expression of [his] views." Krueger, 351 U.S. at 481-485 (Frankfurter, J.); Covert, 351 U.S. at 492 (Frankfurter,
J.).

n52. Krueger, 351 U.S. at 476 (footnote omitted).

n53. Id. at 485-486 (Warren, C.J., dissenting).


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4 J. Nat'l Security L. & Pol'y 295, *342

n54. See Reid v. Covert, 352 U.S. 901 (1956) (mem.); see also Kinsella v. United States ex rel. Singleton
361 U.S. 234, 250-252 & n.3 (1960) (Harlan, J., dissenting) (explaining the reasons for his - and the Court's -
about-face).

n55. Reid v. Covert, 354 U.S. 1 (1957) (plurality).

n56. See id. at 5-14.

n57. See id. at 15-19.

n58. Id. at 19-21.

n59. Id. at 20.

n60. Id. at 20-21 (emphasis added; footnote omitted); see also id. at 22-23 ("We recognize that there might
be circumstances where a person could be "in' the armed services for purposes of Clause 14 even though he had
not formally been inducted into the military or did not wear a uniform. But the wives, children and other
dependents of servicemen cannot be placed in that category, even though they may be accompanying a
serviceman abroad at Government expense and receiving other benefits from the Government.").

n61. Id. at 45 (Frankfurter, J., concurring in the result).

n62. Id. at 46-49.

n63. Id. at 65 (Harlan, J., concurring in the result).


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4 J. Nat'l Security L. & Pol'y 295, *342

n64. See id. at 67-73.

n65. Id. at 77 (citations omitted). Harlan's analysis of the extraterritorial scope of constitutional rights was
heavily relied upon by Justice Kennedy in Boumediene v. Bush, 128 S. Ct. 2229 (2008), in which he concluded
that the Constitution's Suspension Clause applies to non-citizens detained at Guantanamo Bay. See id. at
2255-2257.

n66. 361 U.S. 234 (1960).

n67. 361 U.S. 278 (1960).

n68. See Singleton, 361 U.S. at 249-259 (Harlan, J., dissenting).

n69. 361 U.S. 281 (1960).

n70. Singleton, 361 U.S. at 240-241.

n71. Id. at 248.

n72. For modern examples, see Willenbring v. United States, 559 F.3d 225 (4th Cir. 2009); and United
States v. Erickson, 63 M.J. 504, 510-512 (A.F. Ct. Crim. App. 2006).

n73. 41 C.M.R. (19 U.S.C.M.A.) 363 (1970). The decision is more easily available via Westlaw, at 1970
WL 7355.

n74. Id. at 365.


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4 J. Nat'l Security L. & Pol'y 295, *342

n75. Id.; cf. Latney v. Ignatius, 416 F.2d 821, 823 (D.C. Cir. 1969) (per curiam) (construing Article 2(10)
as not applying to a civilian seaman because "the spirit of O'Callahan [v. Parker, 395 U.S. 258 (1969)], and of
the other Supreme Court precedents there reviewed, precludes an expansive view of Article 2(10)").

n76. 10 U.S.C. § 802(a)(10) (emphasis added). The italicized text was added by the John Warner National
Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, div. A, § 552, 120 Stat. 2083, 2217
(codified at 10 U.S.C. § 802(a)(10)). The Air Force attempted to convene a court-martial pursuant to the new
provision in late 2008, only to dismiss the charges once the defendant - a civilian contractor - sought habeas
corpus relief in the U.S. District Court for the District of Columbia. See Petition for a Writ of Habeas Corpus,
Price v. Gates, No. 09-106 (D.D.C. filed Jan. 16, 2009) (on file with author). See generally Megan McCloskey,
Civilian from Vegas Won't Face Court Martial, Will Return Home, Las Vegas Sun, Jan. 23, 2009.

n77. 395 U.S. 258 (1969).

n78. 483 U.S. 435 (1987).

n79. O'Callahan, 395 U.S. at 267.

n80. A central feature of Justice Harlan's dissent was his suggestion that the majority had badly misread
history. See id. at 276-280 (Harlan, J., dissenting).

n81. Id. at 272 (majority) (footnote omitted).

n82. The Court would provide elaboration in Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S.
355 (1971).

n83. See O'Callahan, 395 U.S. at 273-274 ("We deal with peacetime offenses, not with authority stemming
from the war power. Civil courts were open. The offenses were committed within our territorial limits, not in the
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4 J. Nat'l Security L. & Pol'y 295, *342

occupied zone of a foreign country. The offenses did not involve any question of the flouting of military
authority, the security of a military post, or the integrity of military property.").

n84. See id. at 273 ("Petitioner was properly absent from his military base when he committed the crimes
with which he is charged. There was no connection - not even the remotest one - between his military duties and
the crimes in question. The crimes were not committed on a military post or enclave; nor was the person whom
he attacked performing any duties relating to the military. Moreover, Hawaii, the situs of the crime, is not an
armed camp under military control, as are some of our far-flung outposts.").

n85. See, e.g., Norman G. Cooper, O'Callahan Revisited: Severing the Service Connection, 76 Mil. L. Rev.
165, 186-87 (1977); Jonathan P. Tomes, The Imagination of the Prosecutor: The Only Limitation to Off-Post
Jurisdiction Now, Fifteen Years After O'Callahan v. Parker, 25 Air Force L. Rev. 1, 9-35 (1985); see also United
States v. Alef, 3 M.J. 414, 416 n.4 (Ct. Mil. App. 1977); United States v. McCarthy, 2 M.J. 26, 28 n.1 (Ct. Mil.
App. 1976).

n86. Justice Stevens concurred in the judgment on the ground that he believed Solorio's offense was
"service connected" under O'Callahan. As such, he saw no need to decide whether O'Callahan should be
overruled. See Solorio, 483 U.S. at 451-452 (Stevens, J., concurring in the judgment).

n87. Solorio, 483 U.S. at 439 (majority).

n88. Id. at 441.

n89. See id. at 445-446.

n90. Id. at 450-51 (citation omitted). Phrased slightly differently, Solorio stands for the proposition "implicit
in the military status test" that "determinations concerning the scope of court-martial jurisdiction over offenses
committed by servicemen [are] a matter reserved for Congress." Id. at 440.

n91. Id. at 454 (Marshall, J., dissenting).


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4 J. Nat'l Security L. & Pol'y 295, *342

n92. Id.

n93. See id. at 462-466.

n94. See id. at 466-467.

n95. In Loving v. United States, 517 U.S. 748 (1996), four Justices suggested in a separate concurrence that
Solorio had not only left open the possibility that capital offenses must still be "service connected," but that the
Constitution might itself require such a rule. As Justice Stevens explained,

Solorio's review of the historical materials would seem to undermine any contention that a military tribunal's
power to try capital offenses must be as broad as its power to try noncapital ones. Moreover, the question is a
substantial one because, when the punishment may be death, there are particular reasons to ensure that the men
and women of the Armed Forces do not by reason of serving their country receive less protection than the
Constitution provides for civilians.

Id. at 774 (Stevens, J., concurring in the judgment). Stevens nevertheless concurred in Justice Kennedy's
opinion upholding Loving's death sentence because he believed that the underlying offense was
service-connected. See id. at 775. To date, the Court of Appeals for the Armed Forces has agreed with Justice
Stevens that Solorio's application to non-service-connected capital offenses may well present an open question,
see, e.g., United States v. Gray, 51 M.J. 1, 11 (C.A.A.F. 1999), but has yet to squarely confront the issue.

n96. Most now agree that the first systematic use of such tribunals by the U.S. government took place
during the Mexican War. See Winthrop, supra note 31; Erika Myers, Conquering Peace: Military Commissions
as a Lawfare Strategy in the Mexican War, 35 Am. J. Crim. L. 201, 205 n.23 (2008) ("The Mexican War was
indisputably the first time a separate military court system was created to hear cases not cognizable by
courts-martial."); see also David Glazier, Precedents Lost: The Neglected History of the Military Commission,
46 Va. J. Int'l L. 5, 18-40 (2005) (surveying the Mexican War precedent). See generally Louis Fisher, Military
Tribunals and Presidential Power: American Revolution to the War on Terrorism (2005); Detlev F. Vagts,
Military Commissions: A Concise History, 101 Am. J. Int'l L. 35, 37-43 (2007).

n97. For a fascinating and overlooked example of a military commission employed during (but not the least
bit related to) the Civil War, see Carol Chomsky, The United States-Dakota War Trials: A Study in Military
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4 J. Nat'l Security L. & Pol'y 295, *342

Injustice, 43 Stan. L. Rev. 13 (1990). As Chomsky notes, "As the Civil War progressed, Congress specifically
authorized trial by military commission for various offenses, but in 1862 there was virtually no congressional
recognition of that form of tribunal." Id. at 62 (footnote omitted).

n98. 68 U.S. (1 Wall.) 243 (1864). For the background to Vallandigham, see Curtis A. Bradley, The Story
of Ex parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization, in Presidential
Power Stories 93, 104-105 (Christopher H. Schroder & Curtis A. Bradley eds., 2009).

n99. See Bradley, supra note 98, at 108-109.

n100. See 71 U.S. (4 Wall.) 2 (1866).

n101. Id. at 118.

n102. Id. at 121; see also id. at 121-122 ("No usage of war could sanction a military trial there for any
offence whatever of a citizen in civil life, in nowise connected with the military service. Congress could grant no
such power; and to the honor of our national legislature be it said, it has never been provoked by the state of the
country even to attempt its exercise.").

n103. Id. at 123.

n104. Id. at 127.

n105. See id. at 136 (Chase, C.J.) ("The opinion which has just been read goes further; and as we
understand it, asserts not only that the military commission held in Indiana was not authorized by Congress, but
that it was not in the power of Congress to authorize it ... . We cannot agree to this.").

n106. Id. at 137.


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4 J. Nat'l Security L. & Pol'y 295, *342

n107. See id. at 139 ("We do not put our opinion, that Congress might authorize such a military commission
as was held in Indiana, upon the power to provide for the government of the national forces.").

n108. Id. at 140; see also id. at 139-140 ("Congress cannot direct the conduct of campaigns, nor can the
President, or any commander under him, without the sanction of Congress, institute tribunals for the trial and
punishment of offences, either of soldiers or civilians, unless in cases of a controlling necessity, which justifies
what it compels, or at least insures acts of indemnity from the justice of the legislature.").

n109. Id. at 142.

n110. For a fascinating take on the implications of Milligan during World War I (and prior to Quirin), see
Trial of Spies By Military Tribunals, 31 Op. Att'y Gen. 356 (1918), in which Attorney General Gregory advised
President Wilson that a military commission could not try a Russian national seized at the Mexican border
attempting to enter the United States to commit acts of sabotage on behalf of the German government. See id. at
357-361.

n111. 317 U.S. 1 (1942).

n112. Hamdi v. Rumsfeld, 542 U.S. 507, 569 (2004) (Scalia, J., dissenting).

n113. See G. Edward White, Felix Frankfurter's "Soliloquy" in Ex parte Quirin: Nazi Sabotage's
Constitutional Conundrums, 5 Green Bag 2d 423, 436 (2002).

n114. For useful pre-September 11 accounts, see Eugene Rachlis, They Came To Kill (1961); David
Danelski, The Saboteurs' Case, 1996 J. S. Ct. Hist. 61; Michael R. Belknap, The Supreme Court Goes to War:
The Meaning and Implications of the Nazi Saboteur Case, 89 Mil. L. Rev. 59 (1980); and Robert E. Cushman,
Ex Parte Quirin et al. - The Nazi Saboteur Case, 28 Cornell L.Q. 54 (1942). Quirin has been the subject of at
least three post-September 11 books, see Michael Dobbs, Saboteurs: The Nazi Raid on America (1st ed. 2004);
Louis Fisher, Nazi Saboteurs on Trial: A Military Tribunal and American Law (2d ed. 2005); Pierce O'Donnell,
In Time of War (2005), and a bevy of shorter treatments, of which the best is Carlos M. Vazquez, "Not a Happy
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4 J. Nat'l Security L. & Pol'y 295, *342

Precedent": The Story of Ex parte Quirin, in Federal Courts Stories 219 (Judith Resnik & Vicki C. Jackson eds.,
2009).

n115. See Hamdan v. Rumsfeld, 548 U.S. 557, 593 (2006); see also Vazquez, supra note 114, at 239 n.79.

n116. Quirin, 317 U.S. at 27.

n117. Justice Jackson apparently took issue with the Court's statutory analysis, even though he agreed with
the bottom line. He nevertheless chose not to file a draft concurrence he had prepared, however, once Chief
Justice Stone added a passage noting that the Justices were divided over the significance of Article 15. As Stone
wrote,

[A] majority of the full Court are not agreed on the appropriate grounds for decision. Some members of the
Court are of opinion that Congress did not intend the Articles of War to govern a Presidential military
commission convened for the determination of questions relating to admitted enemy invaders and that the
context of the Articles makes clear that they should not be construed to apply in that class of cases. Others are of
the view that - even though this trial is subject to whatever provisions of the Articles of War Congress has in
terms made applicable to "commissions" - the particular Articles in question, rightly construed, do not foreclose
the procedure prescribed by the President or that shown to have been employed by the Commission in a trial of
offenses against the law of war and the 81st and 82nd Articles of War, by a military commission appointed by
the President.

Id. at 47-48. See generally Jack L. Goldsmith, Justice Jackson's Unpublished Opinion in Ex parte Quirin, 9
Green Bag 2d 223 (2006). For more on Jackson's draft concurrence in Quirin and his internal agonizing over the
proper judicial role in wartime, see Stephen I. Vladeck, Justice Jackson, the Memory of Internment, and the Rule
of Law After the Bush Administration, in When Governments Break the Law: The Rule of Law and the
Prosecution of the Bush Administration 183 (Austin Sarat & Nasser Hussain eds., 2010).

n118. Quirin, 317 U.S. at 28 (emphasis added).

n119. Id.; see also id. at 30 ("Congress has incorporated by reference, as within the jurisdiction of military
commissions, all offenses which are defined as such by the law of war, and which may constitutionally be
included within that jurisdiction." (citation omitted)).
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4 J. Nat'l Security L. & Pol'y 295, *342

n120. Id. at 30.

n121. See id. at 29-30 ("It is no objection that Congress in providing for the trial of such offenses has not
itself undertaken to codify that branch of international law or to mark its precise boundaries, or to enumerate or
define by statute all the acts which that law condemns. An Act of Congress punishing "the crime of piracy as
defined by the law of nations' is an appropriate exercise of its constitutional authority, "to define and punish' the
offense since it has adopted by reference the sufficiently precise definition of international law." (citing United
States v. Smith, 18 U.S. (5 Wheat.) 153 (1820)).

n122. See supra text accompanying note 102.

n123. Quirin, 317 U.S. at 41 (omission in original; emphasis added).

n124. It might indeed be odd if the Constitution conferred greater rights with regard to indictment and trial
by civilian juries upon enemy soldiers (who conceded their status as such) than it does upon our own
servicemembers, who otherwise have a greater (or, at the very least, equal) entitlement to constitutional
protection. See id. at 44-45 ("We cannot say that Congress in preparing the Fifth and Sixth Amendments
intended to extend trial by jury to the cases of alien or citizen offenders against the law of war otherwise triable
by military commission, while withholding it from members of our own armed forces charged with infractions
of the Articles of War punishable by death.").

n125. Stone's only support was a provision in the 1806 Articles of War authorizing the death penalty for
alien spies "according to the law and usage of nations, by sentence of a general court martial." Id. at 41. As he
wrote, "This enactment must be regarded as a contemporary construction of both Article III, § 2, and the
Amendments as not foreclosing trial by military tribunals, without a jury, of offenses against the law of war
committed by enemies not in or associated with our Armed Forces." Id.; see also id. at 42 ("It has not hitherto
been challenged, and so far as we are advised it has never been suggested in the very extensive literature of the
subject that an alien spy, in time of war, could not be tried by military tribunal without a jury." (footnote
omitted)).

n126. Id. at 45.

n127. See id. at 30-38. But see Richard R. Baxter, So-Called "Unprivileged Belligerency": Spies, Guerrillas
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4 J. Nat'l Security L. & Pol'y 295, *342

and Saboteurs, 28 Brit. Y.B. Int'l L. 323, 339-40 (1951) (offering contrary analysis).

n128. See, e.g., Vazquez, supra note 114, at 236-241.

n129. 327 U.S. 1 (1946).

n130. For more on the background to (and problems with) Yamashita, see Richard L. Lael, The Yamashita
Precedent: War Crimes and Command Responsibility (1982); and A. Frank Reel, The Case of General
Yamashita (1949). See also Bruce D. Landrum, Note, The Yamashita War Crimes Trial: Command
Responsibility Then and Now, 149 Mil. L. Rev. 293 (1995); Craig Green, Wiley Rutledge, Executive Detention,
and Judicial Conscience at War, 84 Wash. U. L. Rev. 99, 150-174 (2006); John M. Ferren, General Yamashita
and Justice Rutledge, 28 J. Sup. Ct. Hist. 54, 60 (2003).

n131. See Yamashita, 327 U.S. at 26-41 (Murphy, J., dissenting); id. at 41-81 (Rutledge, J., dissenting).
Justices Murphy and Rutledge also dissented from the Court's decision one week later to turn away - as
controlled by Yamashita - an appeal in a separate military commission case. See In re Homma, 327 U.S. 759,
759-761 (1946) (Murphy, J., dissenting); id. at 761-763 (Rutledge, J., dissenting).

n132. Yamashita, 327 U.S. at 7 (citations omitted; omission in original).

n133. Id. at 8.

n134. Id. at 9.

n135. See id. at 11-13.

n136. See id. at 13-18.


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4 J. Nat'l Security L. & Pol'y 295, *342

n137. See id. at 18-25.

n138. See id. at 26.

n139. 327 U.S. 304 (1946).

n140. See id. at 324.

n141. Act of Apr. 30, 1900, ch. 339, § 67, 31 Stat. 141, 153 (authorizing the Governor of Hawaii "in case of
rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege
of the writ of habeas corpus, or place the Territory or any part thereof, under martial law until communication
can be had with the President and his decision thereon made known").

n142. See Duncan, 327 U.S. at 319-24. See generally John P. Frank, Ex parte Milligan v. The Five
Companies: Martial Law in Hawaii, 44 Colum. L. Rev. 639 (1944).

n143. Duncan, 327 U.S. at 324-335 (Murphy, J., concurring).

n144. 338 U.S. 197 (1948) (per curiam).

n145. See generally Vladeck, supra note 37 (summarizing the background and implications of Hirota).

n146. 339 U.S. 763 (1950).


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4 J. Nat'l Security L. & Pol'y 295, *342

n147. For a deconstruction of Justice Jackson's majority opinion in Eisentrager - and the difficulties inherent
in deciphering what it actually held - see Stephen I. Vladeck, The Problem of Jurisdictional Non-Precedent, 44
Tulsa L. Rev. 587, 595-600 (2009).

n148. 343 U.S. 341 (1952).

n149. Id. at 354-355 (footnote omitted).

n150. See id. at 351-352.

n151. See Military Order of Nov. 13, 2001, Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 16, 2001). Several years before September 11, the former
Chief Judge of the U.S. Court of Military Appeals had specifically advocated the creation of military tribunals to
punish violations of the laws of war. See Robinson O. Everett, Possible Use of American Military Tribunals To
Punish Offenses Against the Law of Nations, 34 Va. J. Int'l L. 289 (1994).

n152. The Military Order appears to have been drafted in substantial reliance upon a 38-page memorandum
prepared by the Office of Legal Counsel (OLC). See Memorandum Opinion for the Counsel to the President:
Legality of the Use of Military Commissions To Try Terrorists (Nov. 6, 2001). Although the OLC memo relied
heavily upon arguments that the President had the inherent authority to try suspected terrorists before military
commissions, it also repeatedly relied upon Quirin's statutory and constitutional analysis. See, e.g., id. at 4-6,
11-14; see also Hamdan v. Rumsfeld, 548 U.S. 557, 595 (2006) ("Absent a more specific congressional
authorization, the task of this Court is, as it was in Quirin, to decide whether Hamdan's military commission is
so justified.").

n153. See Press Release, Dep't of Defense, President Determines Enemy Combatants Subject to His
Military Order (July 3, 2003), available at http://www.defense.gov/ releases/release.aspx?releaseid=5511.

n154. See Dep't of Defense, Military Commission List of Charges for Salim Ahmed Hamdan, available at
http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf. The elements of "conspiracy" were detailed in
"Military Commission Instruction No. 2," a regulation promulgated by the Secretary of Defense. See 32 C.F.R. §
11.6(c)(6) (2005); see also 68 Fed. Reg. 39,381 (July 1, 2003).
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4 J. Nat'l Security L. & Pol'y 295, *342

n155. Hamdan initially filed his suit in the U.S. District Court for the Western District of Washington. After
the Supreme Court decided Rasul v. Bush, 542 U.S. 466 (2004), and Rumsfeld v. Padilla, 542 U.S. 426 (2004),
however, the case was transferred to the U.S. District Court for the District of Columbia. Cf. Gherebi v. Bush,
374 F.3d 727, 739 (9th Cir. 2004) (ordering that detainee's habeas proceeding be transferred to the U.S. District
Court for the District of Columbia).

n156. Compare Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004) (ruling for Hamdan on the
merits), with Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005) (reversing the district court).

n157. After certiorari was granted, Congress enacted the Detainee Treatment Act of 2005, Pub. L. No.
109-148, div. A, tit. X, 119 Stat. 2739 (codified as amended in scattered sections of 10, 28, 42 U.S.C.), section
1005(e)(1) of which purported to remove the jurisdiction of the federal courts - including the Supreme Court -
over suits such as Hamdan's. In its ruling on the merits, though, the Supreme Court concluded that the DTA's
jurisdiction-stripping provision did not apply to "pending" cases, including Hamdan's. See Hamdan v. Rumsfeld,
548 U.S. 557, 572-584 (2006).

n158. Hamdan, 548 U.S. at 593 (citation omitted).

n159. Id. (citation omitted).

n160. Id. (citations and footnote omitted). In a footnote to this passage, Justice Stevens explained that,
"Whether or not the President has independent power, absent congressional authorization, to convene military
commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers,
placed on his powers." Id. at 593 n.23. On the significance (and incompleteness) of footnote 23, see Stephen I.
Vladeck, Congress, the Commander-in-Chief, and the Separation of Powers After Hamdan, 16 Transnat'l L. &
Contemp. Probs. 933 (2007).

n161. Hamdan, 548 U.S. at 601-602 (plurality) (footnote omitted). Justice Kennedy, who otherwise
provided the fifth vote in support of Justice Stevens's opinion, did not deem it necessary to reach the question
whether conspiracy was triable as a war crime. See id. at 655 (Kennedy, J., concurring in part).
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4 J. Nat'l Security L. & Pol'y 295, *342

n162. Id. at 602 (plurality) (citations omitted).

n163. The Supreme Court has rejected the power of the U.S. federal courts to try common-law crimes since
shortly after the Founding. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).

n164. Hamdan, 548 U.S. at 602 n.34 (plurality) (citations omitted).

n165. Id.

n166. Id. at 603-04 (footnotes omitted).

n167. See id. at 604-09 & n.37.

n168. Id. at 610.

n169. See id. at 610-611 & nn.38-40.

n170. As Stevens explained, the ICTY in the Tadic case adopted "joint criminal enterprise" ("JCE") as a
theory of enterprise liability rather than a "crime on its own," and the Appeals Chamber in the Milutinovic case
reiterated that "criminal liability pursuant to a joint criminal enterprise is not a liability for ... conspiring to
commit crimes." Id. at 611 n.40 (quoting Prosecutor v. Milutinovic, Decision on Dragoljub Ojdanic's Motion
Challenging Jurisdiction - Joint Criminal Enterprise, Case No. IT-99-37-AR72, P26 (ICTY App. Chamber, May
21, 2003) (alteration and omission in original)); see also Prosecutor v. Tadic, Judgment, Case No. IT-94-1-A
(ICTY App. Chamber, July 15, 1999). See generally Beth Van Schaack & Ronald C. Slye, International
Criminal Law and Its Enforcement: Cases and Materials 758-782 (2007) (summarizing and quoting from
debates over the meaning and scope of JCE in the ICTY's jurisprudence).

The ICTY's jurisprudence has since been criticized by the ECCC - the Cambodian war crimes tribunal
investigating the abuses of the Pol Pot regime. See Kevin Jon Heller, The ECCC Issues a Landmark Decision on
JCE III, Opinio Juris, May 23, 2010, available at
http://opiniojuris.org/2010/05/23/the-eccc-issues-a-landmark-decision-on-jce-iii. The disagreement over JCE
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4 J. Nat'l Security L. & Pol'y 295, *342

notwithstanding, though, neither decision calls into question the Hamdan plurality's conclusion that international
criminal law does not recognize a standalone offense of conspiracy.

n171. Hamdan, 548 U.S. at 611-612. Curiously, Stevens had also hinted much earlier in the opinion that the
commission might lack what he called "personal" jurisdiction (here, "offender" jurisdiction) over Hamdan, as
well - but only in the context of identifying, rather than resolving, Hamdan's arguments. See id. at 589 n.20
("Hamdan raises a substantial argument that, because the military commission that has been convened to try him
is not a "regularly constituted court' under the Geneva Conventions, it is ultra vires and thus lacks jurisdiction
over him.").

n172. See id. at 613-635. Justice Kennedy concurred in most of this discussion, save for the question of
whether the commission was consistent with that part of Common Article 3 of the Geneva Conventions that
required the commission's procedures to afford "all the judicial guarantees which are recognized as
indispensable by civilized peoples." See id. at 633-635; see also id. at 653-655 (Kennedy, J., concurring in part).

n173. See, e.g., id. at 636 (Breyer, J., concurring) ("Congress has denied the President the legislative
authority to create military commissions of the kind at issue here. Nothing prevents the President from returning
to Congress to seek the authority he believes necessary."); id. at 636-637 (Kennedy, J., concurring in part) ("This
is not a case ... where the Executive can assert some unilateral authority to fill a void left by congressional
inaction. It is a case where Congress, in the proper exercise of its powers as an independent branch of
government, and as part of a long tradition of legislative involvement in matters of military justice, has
considered the subject of military tribunals and set limits on the President's authority.").

n174. Pub. L. No. 109-366, 120 Stat. 2600 (codified as amended in scattered sections of 10, 18, and 28
U.S.C.).

n175. Id. § 3(a), 120 Stat. at 2600-2631.

n176. Id. § 5(a), 120 Stat. at 2631. The only case to date in which section 5 has figured prominently had
nothing to do with the war on terrorism. See Noriega v. Pastrana, 564 F.3d 1290 (11th Cir. 2009), cert. denied,
130 S. Ct. 1002 (2010). For a discussion of some of the difficult questions section 5 raises, see Noriega, 130 S.
Ct. at 1002-1010 (Thomas, J., dissenting from the denial of rehearing en banc).
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4 J. Nat'l Security L. & Pol'y 295, *342

n177. Id. § 7(a), 120 Stat. at 2635-2636. This provision was invalidated as applied to the Guantanamo
detainees in Boumediene v. Bush, 128 S. Ct. 2229 (2008), and as applied to three non-citizens detained at
Bagram Air Base in Afghanistan in al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009), rev'd, 605 F.3d 84
(D.C. Cir. 2010). A separate provision, codified at 10 U.S.C. § 950j(b), purported to preclude collateral
challenges to military commissions. See MCA of 2006 § 3(a), 120 Stat. at 2623-2624. That provision, though,
was deleted by the Military Commissions Act of 2009.

n178. 10 U.S.C. § 948a(1)(A)(i) (2006) (emphasis added); see also id. § 948c (providing that "alien
unprivileged enemy combatants" can be tried by military commissions established under the MCA). See
generally Michael Montano, Note, Who May Be Tried Under the Military Commissions Act of 2006?, 61 Stan.
L. Rev. 1281 (2009).

n179. Ryan Goodman, The Detention of Civilians in Armed Conflict, 103 Am. J. Int'l L. 48, 59 (2009); see
also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv.
L. Rev. 2047, 2115 & n.304 (2005).

n180. For much more on this point, see Gary D. Solis, The Law of Armed Conflict: International
Humanitarian Law in War 202-206 (2010). See also Int'l Comm. of the Red Cross, Interpretive Guidance on the
Notion of Direct Participation in Hostilities Under International Humanitarian Law (2009), reprinted in 872 Int'l
Rev. Red Cross 991, 1016-1028 (2008); Michael N. Schmitt, The Interpretive Guidance on the Notion of Direct
Participation in Hostilities: A Critical Analysis, 1 Harv. Nat'l Sec. J. 5 (2010). Solis and Schmitt both note the
difficulties inherent in the concept of "direct participation" in a non-international armed conflict, and both
critique the ICRC's response - to articulate an intermediate concept of "continuous combat function." As relevant
here, though, what matters is that none of these authorities suggest that indirect participants can be subjected to
trial by military commission for violations of the laws of war.

n181. See Goodman, supra note 179, at 60-63 (discussing the inappropriateness of including indirect
participants within the scope of the "enemy combatant" definition).

n182. Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2574-2614 (codified in scattered sections of 10
U.S.C.).

n183. Id. § 1802, 123 Stat. at 2575 (codified at 10 U.S.C. § 948a(7)(C)). The full offender jurisdiction
provision now authorizes the trial of any alien who is not a "privileged belligerent" (as defined in 10 U.S.C. §
948a(6)), and who "(A) has engaged in hostilities against the United States or its coalition partners; (B) has
Page 45
4 J. Nat'l Security L. & Pol'y 295, *342

purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a
part of al Qaeda at the time of the alleged offense under this chapter." Id.

n184. See 10 U.S.C. § 950v(b) (2006).

n185. Id. § 950p(a).

n186. Id. § 950p(b).

n187. Id. § 950v(b)(24).

n188. Id. § 950v(b)(25).

n189. Id. § 950v(b)(28).

n190. See Military Commissions Act of 2009, Pub. L. No. 111-84, § 1802, 123 Stat. 2190, 2610-2611
(codified at 10 U.S.C. § 950t(24), (25), and (29)). One important improvement in the 2009 MCA is the
requirement that certain offenses be committed "in violation of the law of war." See e.g., 10
U.S.C.§§950t(13)(A), (15), (16), (17), (19), (27).

n191. A third question raised by the Military Commissions Acts, but beyond the scope of this Article, goes
to the retroactive aspect of these definitions. Even if Congress could authorize military commissions for offenses
or offenders not so triable under the laws of war, there is the separate issue of whether Congress may so act
retrospectively, and subject individuals to trial for conduct undertaken prior to the enactment of the 2006 MCA.

n192. These questions have arisen, but not yet been decided, in a series of challenges to military
commissions convened under the MCA - including a petition for a writ of mandamus to the D.C. Circuit in In re
bin al Shibh, No. 09-1238 (D.C. Cir. filed Sept. 9, 2009), and appeals to the Court of Military Commission
Page 46
4 J. Nat'l Security L. & Pol'y 295, *342

Review in United States v. al Bahlul, No. 09-001 (Ct. Mil. Com'n Rev. argued Jan. 26, 2010), and United States
v. Hamdan, No, 09-002 (Ct. Mil. Com'n Rev. argued Jan. 26, 2010).

n193. Even some of the staunchest defenders of the MCA have assumed this point. See, e.g., Paulsen, supra
note 27, at 1821.

n194. 2 The Records of the Federal Convention of 1787, at 594-595 (Max Farrand ed., 1937) (Committee of
Style and Arrangement).

n195. Stephens, supra note 26, at 473.

n196. Id. (footnotes omitted; third alteration in original); see also Kent, supra note 26, at 899 (providing a
similar account of the debate).

n197. Id. at 474.

n198. 18 U.S. (5 Wheat.) 184 (1820).

n199. Id. at 194 (emphasis omitted). For a cogent discussion of Furlong (placing it in the broader context of
the Court's contemporaneous jurisprudence regarding crimes committed on the high seas), see Kontorovich,
supra note 26, at 189-191.

n200. Act of Apr. 30, 1790, ch. 9, § 8, 1 Stat. 112, 113-114.

n201. Furlong, 18 U.S. at 198.


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4 J. Nat'l Security L. & Pol'y 295, *342

n202. Military Commissions, 11 U.S. Op. Att'y Gen. 297 (1865).

n203. See id. at 298 ("I do not think that Congress can, in time of war or peace, under this clause of the
Constitution, create military tribunals for the adjudication of offences committed by persons not engaged in, or
belonging to, [the land or naval] forces.").

n204. Id. at 299.

n205. 120 U.S. 479 (1887).

n206. See Act of May 16, 1884, ch. 52,§§3, 6, 23 Stat. 22, 22-24.

n207. Arjona, 120 U.S. at 484.

n208. Id. at 488.

n209. Note, supra note 26, at 2386-2387.

n210. Id. at 2387.

n211. For an interesting - if controversial - recent district court decision taking up this issue in the context of
Congress's power to define piracy (and concluding that Congress had gone further than international law
allowed), see United States v. Said, No. 10-57 (E.D. Va. Aug. 17, 2010).

n212. U.S. Const. art. I, § 8, cl. 3.


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4 J. Nat'l Security L. & Pol'y 295, *342

n213. Stephens, supra note 26, at 545.

n214. Kontorovich, supra note 26, at 203.

n215. Charles D. Siegal, Deference and Its Dangers: Congress' Power To "Define ... Offenses Against the
Law of Nations," 21 Vand. J. Transnat'l L. 865 (1988).

n216. Id. at 941-42 (footnotes omitted); cf. Morley, supra note 26, at 143 ("The immutable principles
comprising the law of nations were thought to govern only certain discrete areas including navigation, war,
commerce, and diplomatic interactions with other nations. It is only with regard to these subjects that Congress
may legislate under the Offenses Clause.").

n217. Note, supra note 26.

n218. 542 U.S. 692 (2004) (holding that the arbitrary detention of a Mexican national for less than one day
violated no norm of customary international law sufficiently well-established as to support a cause of action
under the Alien Tort Claims Act, 28 U.S.C. § 1350).

n219. Note, supra note 26, at 2395.

n220. Id. at 2396.

n221. See id.

n222. Id. at 2397.


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4 J. Nat'l Security L. & Pol'y 295, *342

n223. Id.

n224. Id. at 2398. In this regard, consider Congress's decision to codify "conspiracy" as an offense triable by
military commission in the MCA notwithstanding Hamdan, and even as federal courts, rejecting claims under
the Alien Tort Claims Act, 28 U.S.C § 1350, continue to rely on the legal conclusion that international law does
not recognize conspiracy as a form of inchoate liability. See, e.g., Presbyterian Church of Sudan v. Talisman
Energy, Inc., 582 F.3d 244, 259-260 (2d Cir. 2009). This kind of dichotomy may well be what the student author
had in mind in referring to "the character of Congress's action."

n225. Note, supra note 26, at 2398.

n226. See Roger P. Alford, The Nobel Effect: Nobel Peace Prize Laureates as International Norm
Entrepreneurs, 49 Va. J. Int'l L. 61, 92-108 (2008).

n227. See generally Allison Marston Danner, When Courts Make Law: How the International Criminal
Tribunals Recast the Laws of War, 59 Vand. L. Rev. 1 (2006).

n228. See id. at 4-6.

n229. See id. at 49 ("The legal decisions rendered by the Tribunals ... are widely viewed as an authoritative
source for interpretations of international humanitarian law. The Tribunals' caselaw has been cited as persuasive
authority by other international criminal courts, by domestic courts, by international organizations, by NGOs,
and by scholars. These sources treat the Tribunals' jurisprudence as law - not merely proposals for what
international law should be... . Whatever the reason [for this development], it is clear that the legal decisions
issued by the ICTY are considered more authoritative than statements from other actors, such as NGOs or
international legal scholars. They are treated as relevant articulations of the law, even if their precedents do not
formally bind other courts." (footnotes omitted)).

n230. 18 U.S.C. § 2441 (2000).


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4 J. Nat'l Security L. & Pol'y 295, *342

n231. See generally War Crimes Act of 1996, H.R. Rep. No. 104-698 (1996).

n232. Id. at 7.

n233. See 18 U.S.C. § 2441(c) (defining "war crime").

n234. See H.R. Rep. No. 104-698, at 6-7.

n235. See id. at 5-6.

n236. See, e.g., Stephen I. Vladeck, Terrorism and International Criminal Law After the Military
Commissions Acts, 8 Santa Clara J. Int'l L. 101 (2010).

n237. See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123 (1866).

n238. See, e.g., Ex parte Quirin, 317 U.S. 1, 40-41 (1942); see also Kinsella v. United States ex rel.
Singleton, 361 U.S. 234, 272-273 (1960) (Whittaker, J., dissenting).

n239. Quirin, 317 U.S. at 41.

n240. Id. at 40.

n241. United States ex rel. Toth v. Quarles, 350 U.S. 11, 23 n.22 (1955).
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4 J. Nat'l Security L. & Pol'y 295, *342

n242. Id. (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821)).

n243. Of course, there might be additional means by which international humanitarian law might prohibit
the trial even if the offender and offense are triable by military commission under the laws of war. The point of
this article is not exhaustively to survey the ways in which the laws of war constrain military commissions, but
merely to explain why, in appropriate circumstances, they constrain the jurisdiction of such commissions, a
result that follows directly from the Constitution.

n244. Hamdan v. Rumsfeld, 548 U.S. 557, 602 n.34 (2006) (plurality).

n245. For much more on the Captures Clause debate, see Wuerth, supra note 25. For some examples of
arguments that the Captures Clause may provide such authority, see Saikrishna Bangalore Prakash, The
Separation and Overlap of War and Military Powers, 87 Tex. L. Rev. 299, 319-321 (2008); Michael D. Ramsey,
Torturing Executive Power, 93 Geo. L.J. 1213, 1240 (2005). See also John Yoo, The Powers of War and Peace:
The Constitution and Foreign Affairs after 9/11, at 147 (2005).

n246. See, e.g., Paulsen, supra note 27, at 1833 ("If ... a general definition of an offense against the Law of
Nations contradicts a specific presidential military command concerning the use of force against enemies in time
of constitutionally authorized war (including ... the use of force to impose military punishment for violation of
the laws of war), it is most doubtful that the general statute constitutionally may trump the Commander-in-Chief
power of the President.").

n247. See, e.g., Reply to Defense Response to Government's Supplemental Brief at 1, United States v.
Khadr, No. P009 (Aug. 2, 2010), available at http://www.defense.gov/ news/AE-295-AE295-E(P009).pdf.

n248. See, e.g., Goodman, supra note 179, at 59 n.63 (citing sources).

n249. Pub. L. No. 111-84, § 1802, 123 Stat. 2190, 2575 (codified at 10 U.S.C. § 948a(7)(C)).

n250. In Prosecutor v. Galic, the ICTY did hold that terror against a civilian population can in fact be a war
crime. See Prosecutor v. Galic, Judgment, Case No. IT-98-29-T, PP 86-138 (ICTY Trial Chamber Dec. 5, 2003);
Page 52
4 J. Nat'l Security L. & Pol'y 295, *342

see also Van Schaack & Slye, supra note 170, at 555-572 (discussing Galic). But the conclusion that terrorism
can be a war crime under certain circumstances hardly compels the conclusion that it is always such.

n251. See generally Naomi Norberg, Terrorism and International Criminal Justice: Dim Prospects for a
Future Together, 8 Santa Clara J. Int'l L. 11 (2010).

n252. United States ex rel. Toth v. Quarles, 350 U.S. 11, 22 (1955).

n253. See United States v. Verdugo-Urquidez, 494 U.S. 259, 270-275 (1990) (plurality).

n254. See, e.g., Kiyemba v. Obama, 555 F.3d 1022, 1026-1027 (D.C. Cir. 2009) ("The due process clause
does not apply to aliens without property or presence in the sovereign territory of the United States."), vacated
and remanded, 130 S. Ct. 1235 (2010) (per curiam), reinstated on remand, 605 F.3d 1046 (D.C. Cir. 2010) (per
curiam).

n255. See, e.g., United States v. Wanigasinghe, 545 F.3d 595, 597 (7th Cir. 2008).

n256. To be sure, the Court in Verdugo-Urquidez expressly rejected this argument, but that was in the
context of a Fourth Amendment claim. Such analysis would hardly control with regard to provisions that, unlike
the Fourth Amendment, see, e.g., Stone v. Powell, 428 U.S. 465 (1976), have been held to be fundamental to the
underlying fairness of the proceedings, see, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968).

n257. See supra note 125 and accompanying text.

n258. For a thoughtful contemporary discussion of this point, see al- Marri v. Pucciarelli, 534 F.3d 213,
230-233 & nn.14-15 (4th Cir. 2008) (en banc) (Motz, J., concurring in the judgment).

n259. Padilla v. Hanft, 432 F.3d 582, 587 (4th Cir. 2005) (mem.).
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4 J. Nat'l Security L. & Pol'y 295, *342

n260. See, e.g., Khadr v. Obama, No. 04-1136, 2010 WL 2814416, at 7 (D.D.C. July 20, 2010) ("The
Supreme Court ... has already concluded that, consistent with the Constitution, Congress may authorize trial by
military commission of enemy combatants accused of law of war violations. The fact that Congress did so here,
then, raises no substantial constitutional question." (citations omitted)).

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