Trying Terrorism: Material Support for Terrorism, Joint Criminal Enterprise, and the Paradox of International Criminal Law

In 2003, the United States commenced its first criminal proceedings against a handful of Guantanamo detainees. Rather than trying them before traditional federal courts, the U.S. chose to try them before military commissions for violations of the laws of war. After this first iteration of military commissions were struck down in 2006, Congress passed the Military Commissions Act which codified some thirty-two offenses, including conspiracy and material support for terrorism. In enacting the legislation, Congress provided that it was only codifying those offenses which had “traditionally been triable by military commission . . . [and was] not establish[ing] new crimes,” thus the codified crimes could apply retroactively. One detainee, Salim Ahmed Hamdan — known to the world as Osama bin Laden’s driver — challenged the government’s authority to subject him to trial by military commission on the charges of conspiracy and material support, arguing that military commissions lacked subject matter jurisdiction over the charges. Hamdan has contended that, irrespective of the new statutory provision, both of these effectively inchoate offenses are not violations of the customary international laws of war, and thus that the military commissions still lack subject matter jurisdiction. Parallel to his case, another detainee, Ali Hamza Ahmad Suliman Al Bahlul, made a nearly identical argument on appeal from nearly identical charges. In 2011, the Court of Military Commission Review (CMCR) rebuffed both defenses; both defendants in turn filed appeals with the D.C. Circuit Court of Appeals. Now, for the first time in over a century, the U.S. federal courts will be tasked with looking to international law to answer the rarely heard but exceptionally important question of what limitations constrain congressional power to define and punish offenses against the law of nations, or in this case, the laws of war. In answering that question, the courts will have primary recourse in international criminal law (ICL). The issue presented by Hamdan’s appeal — whether a recognized war criminal’s driver may be tried for war crimes on the theory that his driving contributed to the crimes — brings to the fore dilemmas posed by modern developments in international law. Defying public international law’s anachronistic statist origins and formal doctrine of sources, the last two decades have witnessed the rapid evolution of law driven not by states, but by international and nongovernmental organizations and international courts. This “judicialization” of international law is nowhere more evident than in ICL, a body of law that, in reality, has been almost wholly developed by international tribunals. Although rooted in a handful mid-twentieth century treaties elaborating the laws of war, much of the substance of ICL has been articulated, expanded, and, frankly, revolutionized by the ad hoc tribunals. Nevertheless, judge-made law remains formally anathema to an international legal system still governed by a statist doctrine of sources that rejects the ability of courts and judges to make law. Previously a matter of abstract theory for scholars, this paradox is rendered concrete by the cases of Hamdan, Al Bahlul, and other detainees whose futures appear to rely upon the substantive and authoritative limitations placed on these juridical sources. This Note subsequently examines three issues in the wake of Hamdan’s and Al Bahlul’s appeals to the D.C. Circuit: (1) whether material support is properly analogous to JCE; (2) whether, as a matter of formal public international law, U.S. courts have properly interpreted the authority of the ICTY’s jurisprudence vis-a-vis the Rome Statute in defining and identifying customary international law norms; and (3) whether the importation of these ICL sources for the purposes of the military commission is proper given the unique context of the tribunals and what, if any, restraints should be placed on the use of their doctrinal developments.