Tomorrow, the Supreme Court will hear arguments in Hamdan v. Rumfseld, the case against Osama Bin Laden's motor-pool operator, on trial for conspiracy before a Guantanamo Bay military commission. The case is notable not only for its facts, but also for the sheer number of complicated constitutional questions it presents: Can the president try suspected members of al-Qaida by military commission, as opposed to courts-martial or in the criminal courts? Do the Geneva Conventions apply to the war on terror? Did the recently passed Detainee Treatment Act strip the Supreme Court of jurisdiction to decide all of these questions? And does Congress even have that kind of power over the court?
That's not all. Having already heard the case on the Court of Appeals, Chief Justice Roberts has recused himself, leaving only eight justices to hear Hamdan. That creates some risk that the court could produce a split ruling that will offer lower courts no clear direction on matters vital to foreign policy and national security. (They've already done it once.) The need for a clear consensus opinion could not be greater.
The Bush administration will argue that such consensus will best be found with a court decision to wait and address Hamdan's claims only after his military commission has run its course. After all, the government argues, Hamdan could be found innocent, obviating the need to decide any of these difficult legal questions. While this may sound like the path of least resistance, it would be an extraordinary one to follow: It would give the court's implicit blessing to Guantanamo's quasi-legal tribunal system, which has been roundly criticized as unconstitutional and unfair by even some who once worked within it.
Largely ignored in this debate is the fact that a better consensus option is available: The court could find that "conspiracy"—the only charge against Hamdan—does not violate the law of war.
The law of war is a set of rules, distinct from everyday criminal law, that governs the behavior of all actors in wartime. It can be defined by Congress pursuant to its constitutional power "To define and punish … Offences against the Law of Nations"; codified by treaty; or otherwise established by the universal custom and practice of nations.
One of the very few points of agreement between the Bush administration and Hamdan's lawyers is that military commissions may try only violations of the law of war, and not federal criminal law. Indeed, when the Supreme Court affirmed the trial by military commission of eight German saboteurs in the canonical World War II case of Ex Parte Quirin, it established that the first question a reviewing court must ask is "whether any of the acts charged is an offense against the law of war cognizable before a military tribunal." If conspiracy is not a crime as defined by the law of war, then Hamdan's trial is invalid, and the court need not resolve any of the more contentious questions before it.
And how is it possible that the crime of conspiracy is not recognized by the law of war? Neither the Geneva nor the Hague conventions mention conspiracy, nor did Congress when it defined "war crimes" in 1997. No military commission in our nation's history has ever been constituted solely to hear the charge of conspiracy. Nor has the Supreme Court ever said—even in passing—that such an action would be permissible. The war crimes tribunals at both Nuremberg and Tokyo largelyrejected conspiracy as a substantive crime, and those for Yugoslavia and Rwanda recognize it only in the narrow context of genocide. The International Criminal Court in Rome does not recognize a crime of conspiracy, nor do the major international treaties on terrorism, like those prohibiting the financing of terror or the taking of hostages. The absence of congressional action, a relevant treaty, or universal custom suggests that conspiracy simply does not violate the law of war.
The concern, as Justice Robert Jackson once explained, is that "the modern crime of conspiracy is so vague that it almost defies definition." As a general matter, conspiracy is an agreement to commit an unlawful act. But the central problem with that definition is just this: Either an agreement suffices to make one guilty of aiding some underlying offense, such as murder, or not. If the answer is yes, then the underlying offense should be charged. But if the answer is no, then creating a new crime called "conspiracy" is redundant and irrelevant. And while these concerns may be worrisome within our domestic criminal justice system, they are even more problematic in the context of the closed military tribunals being held on Guantanamo. That's because constitutional protections that might sharpen the edges of fuzzy conspiracy laws are being denied to Hamdan: He can be excluded from his own trial (and already has been); the commission can hear testimony obtained through torture; and the government can retry Hamdan even if he is ultimately found innocent. These constitutional protections exist not only for the benefit of the defendant but also to protect the most basic notions of the rule of law.
It is a cardinal principle of Supreme Court decision-making that courts should decide no more than they must. But even more than being good law, resolving Hamdan by finding that there is no law of war criminalizing conspiracy makes for good policy. All 10 current commission defendants face a conspiracy charge and, like Hamdan, seven of them face only that charge. Moreover, much of the international outcry over these commissions is a result of the scant evidence against those detained. By addressing the narrow question of conspiracy, the court can thus make clear that even military justice follows basic ground rules. At the same time, by addressing only the matter of conspiracy, the court can leave open the possibility that some form of military commission may be appropriate for the most dangerous detainees—those who have committed crimes that undeniably violate the law of war.
As for Hamdan himself, closing down his military commission would not make him a free man. If he was indeed an active supporter of al-Qaida and intentionally facilitated its terrorist objectives, he can be prosecuted for criminal conspiracy in a federal court, and perhaps by a court-martial, as well. The facts in Hamdan establish that there is no need for the Bush administration to set up military commissions to try him, and also no need for the Supreme Court to confront any of the difficult constitutional questions such commissions raise. The president's consistent refusal to try the Guantanamo detainees before criminal courts or courts-martial leads a reasonable observer to conclude that the government's case would fail if it were subjected to scrutiny by an impartial adjudicator. And if that is the only justification for military tribunals, it must be rejected. No one denies that the war on terror presents new challenges to the rule of law. But prosecuting someone with a crime that does not exist, before a commission that does not have rules, simply does not constitute justice under any set of circumstances.