The system of detention and military trial authorized by President George W. Bush on November 13, 2001, and additional claimed authority to hold terrorist suspects indefinitely without process, have been litigated in several judicial circuits, moving from district courts to the Supreme Court and back down again. In 2006, these authorities returned to the Court for further exploration in Hamdan v. Rumsfeld. Regrettably, until very recently the separation of powers issues raised by the President’s initiatives received little attention from Congress, which, under the Constitution, has primary responsibility over military courts, tribunals “inferior to the supreme Court,” “Offenses against the Law of Nations,” the war power, and “Rules concerning Captures on Land and Water.” Because of congressional passivity, the principal checks on presidential power have been supplied instead by litigants and courts. The constitutional issues that emerge from this concentration of power in the presidency form the central theme of this article.
Discussions about torture often start with this hypothetical: Imagine that there is a terrorist in the middle of Manhattan who has planted a nuclear bomb set to go off within hours. You capture him and are faced with a moral dilemma. Do you torture him to get the information that will allow you to defuse the bomb, thereby saving the lives of millions of people? Or do you stand on principle and sacrifice multitudes?
Two innovative federal crimes, 18 U.S.C. §2339A and §2339B, have been frequently charged in prosecutions since September 11, 2001, becoming key elements in the government’s anti-terrorism efforts. Section 2339A makes it a federal crime knowingly to provide material support or resources in preparation for or in carrying out specified crimes of terrorism. Section 2339B prohibits knowingly providing material support to a foreign terrorist organization. These statutes bear some resemblance to criminal liability for complicity, but they are being used like a new kind of conspiracy charge, the familiar “prosecutor’s darling.” Unlike conspiracy, they are framed with a mens rea of knowledge rather than of purpose, and because they are substantive offenses, they can be combined with traditional conspiracy charges. These provisions can be used to impose punishment for conduct remote from the commission of criminal harms, often conduct involving minimal and outwardly non-criminal acts.