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Who Decides the Laws of War?

General Mark Martins (Photo courtesy Harvard Law School)

General Mark Martins (Photo courtesy Harvard Law School)

Charlie Savage has an interesting article in the New York Times on the role of General Mark Martins, the Chief Prosecutor of Military Commissions for the United States. Savage reports:

UNTIL recently, no uniformed lawyer was viewed by the Obama administration with greater favor than Brig. Gen. Mark S. Martins, the scholarly chief prosecutor of the military commissions system who is leading the case against Khalid Shaikh Mohammed and four other Guantánamo Bay detainees accused of aiding the terrorist attacks of Sept. 11, 2001.

A Rhodes Scholar who graduated first in his class at West Point and earned a Harvard law degree alongside a young Barack Obama, General Martins served for five years in Iraq and Afghanistan, helped review detainee policies for President Obama in 2009, and was handpicked to reboot commissions in the hope that his image and conduct would persuade the world to respect the outcome of the Sept. 11 case — prosecutors are seeking death sentences — as legitimate.

But next week, when General Martins returns to public view at a pretrial hearing in the Sept. 11 case, he may appear to have gone rogue. He has engaged in an increasingly public dispute with the administration centered on an uncomfortable question he is refusing to drop: is it valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law?

General Martins’s standoff with the administration is writing a new chapter in a familiar narrative: since the 2001 terrorist attacks, military lawyers in the Judge Advocate General’s Corps have repeatedly clashed with politically appointed lawyers over the laws of war.

During George W. Bush’s administration, uniformed lawyers pushed back against civilian officials over the applicability of the Geneva Conventions in the war on terrorism, torture and protections for defendants in tribunals. Then as now, uniformed lawyers adopted rigid interpretations of the rules of warfare as constraining government policies, while civilian lawyers gravitated toward more flexible (or expedient) understandings.

The current dispute traces back to an appeals court ruling in October that vacated a tribunal’s verdict in 2008 against an Al Qaeda driver because his offense, “material support for terrorism,” was not a recognized international war crime at the time of his actions. The judges rejected the Justice Department’s argument that the charge was nevertheless valid under an American “common law of war” and because Congress had listed the crime as an offense for the tribunals in a 2006 statute.

The ruling raised the question of what to do about other cases with the same defect, including the appeal of a convicted Al Qaeda propagandist whose charges included “conspiracy,” which is also not an international war crime but was sometimes charged by tribunals in American history, including in cases from World War II and the Civil War.

General Martins pushed to abandon the propagandist’s conviction and scale back the charges that are triable in a military commission, contending that pressing forward with failed arguments would delegitimize the system and cast a distracting cloud over the Sept. 11 case. But Attorney General Eric H. Holder Jr. decided to go forward with defending the propagandist’s conviction and the validity of conspiracy as a tribunal charge, and the schism opened.

General Martins refused to sign the Justice Department brief in the propagandist case and announced he would seek to drop conspiracy from the list of charges in the Sept. 11 case and focus on “legally sustainable” ones, like the classic war crime: attacking civilians. But the Pentagon official who oversees tribunals refused to withdraw the conspiracy charge, citing the Justice Department. General Martins responded that his prosecutors would not argue against a defense motion asking a judge to scuttle it.

“It really is amazing,” said Gary Solis, a retired military judge who teaches wartime law at George Washington and Georgetown Universities. “They brought Martins in to square it away, and everyone on all sides said ‘if anyone can do it, it’s Martins.’ Then when Martins offers his best advice, it’s rejected.”

In certain respects, the current dispute is knottier and more abstract than Bush-era fights over the laws of war. But a common concern connects them: reciprocity, or the principle that a military should treat wartime prisoners the same as it wants adversaries to treat its soldiers.

David Glazier, a retired naval officer who teaches the laws of war at Loyola Law School in Los Angeles, posed the question: if Iran someday shoots down an American pilot, could the Iranian military — citing the administration’s position — prosecute and execute him for an idiosyncratic war crime derived from Persian tradition rather than international law?

“What we are seeing is that it’s easy for civilian members of the government, who are in power for a comparatively short time, to get tunnel vision on a particular case or situation,” he said. “But how the United States handles these cases is going to influence how other countries in future wars treat captured Americans.”

There are complications. Few expect a terrorist group to obey the laws of war regardless of the example the United States sets. The administration’s arguments have focused on litigation strategy as much as principle. Some civilian officials backed General Martins, while some military lawyers disagreed with him.

And shortening the list of charges for tribunals could mean that fewer Guantánamo detainees get trials rather than indefinite detention. A 2009 review deemed about three dozen detainees eligible for prosecution, but only about a third of them were linked to specific attacks, officials have said.

Other triable detainees might be charged with conspiracy with Al Qaeda under domestic law, but Congress has forbidden prosecuting them in civilian courts. Against that backdrop, Eugene R. Fidell, who teaches military law at Yale Law School, argued that the drama may be less about individuals than it is about institutions struggling to make the system work despite impediments.

“It’s tempting to view this as about General Martins, but it’s not,” he said. “Decisions about prosecuting detainees have become about what is feasible as opposed to what is rational. The constraints imposed by Congress are forcing officials into contorted positions which are particularly uncomfortable for military lawyers, who don’t want to get near the ‘third rail’ of destroying reciprocity.”

Good for General Martins!

For more information on his decision to oppose the conspiracy charge, listen to this Podcast interview with Ben Wittes over at Lawfare.

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One Comment

  • Max Lybbert says:

    I recognize that this kind of tension is common between the civilian branches and the military. I find it interesting that the military’s legal positions are less aggressive than the Justice Department’s, at least in this case.

    If I understand things, traditionally, the US could have held prisoners from Afghanistan until the cessation of hostilities. After the Supreme Court ruled on several of these cases, however, the US is now allowed to capture people in Afghanistan, but must show some evidence that they are actually combatants in order to hold them very long. But prisoners that have been shown to be combatants can be held until the cessation of hostilities.

    So these tribunals are really about either punishing people in some way other than prison (say, execution), or detaining people after the war officially ends. Based on that, I think I can understand the military’s reluctance to set a a precedent that could be used against the US.

    I don’t believe reciprocity has much of a track record of actually working. However, I don’t think the military actually believes reciprocity works, but instead believes that violations of reciprocity can justify military action.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.