You may have heard that the first of the Guantánamo show trials has found an associate of Osama bin Laden’s (widely described as his “chauffeur”) guilty of “providing material support for terrorism” in what I think is the first “war crimes” trial the U.S. has conducted since the ones in the wake of Japan’s defeat in World War Ⅱ.
In the post World War Ⅱ war crimes trials, particularly the ones in Nuremberg, the issue of jurisdiction and ex post facto law was debated. The defense argued that it violates the principles of justice to charge a defendant with something that wasn’t a crime in the jurisdiction in which they lived and operated, and indeed wasn’t made a crime until after it was committed. The prosecution argued, successfully, that the war crimes the defendants were being charged with were globally applicable and existed in some sort of implied form even before they were codified in the course of the indictment. Kind of an iffy argument — the lead prosecutor called the trial a “desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world’s peace” — but it worked.
The same thing happened in the latest war crimes trial. The defendant was convicted of providing material support to terrorism, a crime that Congress defined in the Military Commissions Act of , long after the defendant had been captured. So, naturally, the defense raised the ex post facto problem. And, as you might guess, the judge dismissed it in a similar way to the way it was done at Nuremberg: saying that the act merely codified what had already been considered war crimes.
For those people who think that the Nuremberg Principles justify tax resistance as a way of avoiding participation in war crimes, this ruling, which says that there has been a long-standing implicit understanding that providing material support to terrorism is a war crime — one that the Military Commissions Act provides one possible codification of — may be some interest.
A terrorist, the judge wrote, is a person “who intentionally kills or inflicts great bodily harm on one or more protected persons” [generally-speaking: civilians, wounded soldiers, or medical / religious military personnel] “or intentionally engages in an act that evinces a wanton disregard for human life” (the statute the judge is quoting goes on from this point to qualify this further by saying “in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct.”)
A taxpayer in the United States certainly provides material support for acts that evince a wanton disregard for human life. Now, assuming for the point of argument that any U.S. court would take seriously a tax resister’s defense on this ground, Congress could just rewrite the law to explicitly define terrorism in such a way that it excludes the government, or to define material support in such a way that it excludes paying taxes to the government. But remember that the judge in this case said that the war crimes of terrorism and of supplying material support to terrorism existed as such even before Congress formally codified them. Because of this, and because war crimes are of international scope and jurisdiction (which is to say that any tribunal anywhere formed at any time under any ad hoc sorts of rules seemingly can try anyone for war crimes committed anywhere at any time) such Congressional tinkering might not be very meaningful.
Myself, I’m pretty sure the idea of “war crimes” isn’t worth much. The prosecution in Guantánamo is even trying to stretch the concept to cover all guerrilla warfare — anything where a non-uniformed irregular attacks even a legitimate military target — so they can prosecute just about anyone who resisted them in Afghanistan or Iraq as a “war criminal.” Imagine if you will the shoe on the other foot here! The Japanese Imperial Army makes a surprise land invasion of Oakland, California. Thirteen year old Clint Eastwood grabs his hunting rifle and prepares to defend the family home, but his father grabs his arm and says “by god, I didn’t raise my son to be a war criminal!”