The CMCR Invents the War Crime of Conspiracy

by Kevin Jon Heller

Even I thought the Court of Military Commission Review couldn’t reach such an absurd conclusion.  I was wrong:

The Government has made a “substantial showing” that the conduct alleged, including appellant’s (an AUEC’s) agreement with bin Laden and others to commit the object offenses, with knowledge of and intent to further the unlawful purposes of that agreement, and commission of the enumerated overt acts including meeting with and pledging personal loyalty to bin Laden, and membership in al Qaeda was punishable by military commission as an offense against the law of armed conflict when committed (p. 97).

The CMCR’s reasoning is, not surprisingly, a complete joke.  First, the CMCR claims that “[t]he act of uniting with ‘banditti, jayhawkers, guerillas, or any other unauthorized marauders’ has long violated the law of armed conflict and that ‘offence is complete when the band is organized or joined'” (pp. 91-92). It provides no evidence for that fact, other than an opinion issued by Lincoln’s Attorney General, from which the quote is taken.  And yes, conspiracy and criminal membership are completely different crimes.  (See below.)  But fine — let’s stipulate that the United States took the position during the Civil War that “conspiracy” was a war crime.

Second, the CMCR argues that “[r]ecent treaty law acknowledges participation in a transnational organized criminal group in a manner similar to the charged conspiracy as punishable conduct.  See Convention against Transnational Organized Crime, art. 5″ (p. 92).  The CMCR conveniently fails to mention, of course, that the Convention concerns “organized crime” — look, it’s right there in the title! — and has nothing to do with the law of war or war crimes.

Third, the CMCR points out that “punishment of such conduct under domestic criminal law reflects widespread agreement on this fundamental principle” (p. 92) and spends four pages listing all the states that criminalize conspiracy (pp. 93-97).  Sure, none of those states criminalize conspiracy as a war crime, but why let that inconvenient fact get in the way of the CMCR’s predetermined conclusion?

Fourth, the CMCR analogizes conspiracy to criminal membership:

Appellant’s charged conspiracy is directly akin to the criminal organization provisions of the Nuremburg Charter in Articles 9 and 10, as implemented by the IMT. See discussion supra pp. 63-65. We also find that appellant’s conduct readily meets the requirements of membership in a criminal organization. Appellant’s conduct, including his agreement with bin Laden and others to commit the object offenses, with knowledge of and intent to further the unlawful purposes of that agreement, and commission of the enumerated overt acts, including meeting with and pledging personal loyalty to bin Laden, and then joining al Qaeda was punishable by military commission as an offense against the law of armed conflict when committed (p. 97)

The CMCR somehow neglects to mention that criminal membership at Nuremberg was not a war crime — as evidenced by the fact that it was mentioned in Article 10 of the London Charter, while war crimes were listed in Article 6(b).  And it somehow neglects to mention that criminal membership and conspiracy are completely different kinds of inchoate crimes, because the whole point of criminal membership at Nuremberg was to hold defendants criminally responsible for voluntarily joining an organization they knew was criminal, even if they never agreed to commit criminal acts or intended such acts to be committed.

Fifth, and finally, the CMCR analogizes conspiracy to aiding and abetting and JCE (citations omitted):

Additionally, and like the conduct charged as providing material support for terrorism the offense of conspiracy as charged is essentially co-perpetrator or principal liability, akin to aiding and abetting, or complicity, theories of individual criminal liability long recognized under the law of armed conflict, and in the domestic law of civilized nations. This is particularly true where, as here, the accused voluntarily conspires and agrees with al Qaeda’s leadership to commit at least seven separate offenses against the law of armed conflict and with knowledge of and intent to further the unlawful purposes of that agreement, knowingly commits various overt acts to accomplish some objective of that agreement including pledging loyalty to bin Laden, joining al Qaeda, and providing various services and resources to both. The mens rea element as defined in 2006 M.C.A. § 950v(b)(28), and the 2007 M.M.C., Part IV, ¶¶ 6(28)b, and as applied by the military judge at trial also duplicates that required for “Basic JCE” (shared intent to perpetrate a certain crime), and “Extended JCE” (intent to participate in and further the criminal activity or the criminal purpose of a group).

Yep, conspiracy, a purely inchoate crime, is just like aiding and abetting or JCE, modes of participation that connect defendants to a crime that has actually been committed.  Except, of course, that conspiracy is an inchoate crime, while aiding and abetting and JCE are modes of participation.  And except for the fact that the whole point of conspiracy is to ensure that defendants who plan but do not commit crimes do not escape criminal liability.  Other than that, they are exactly the same.  (As a humorous aside, note that the CMCR has no understanding of JCE III, which is a mode of participation that is specifically designed to connect a defendant to a crime that he didn’t intend to commit.)

So, that’s it.  A Civil War-era opinion by the U.S. Attorney General; an international convention that has nothing to do with the law of armed conflict; a bunch of domestic terrorism statutes; the long-discredited non-war-crime of criminal membership; and various modes of participation.  Such is the “substantial showing” that conspiracy is a war crime.

And note, finally, the most egregious absence from the CMCR’s opinion: any reference at all to the fact that the Nuremberg Military Tribunals uniformly concluded, after extensive briefing and oral argument, that — to quote the common language from the Medical, Justice, and Pohl judgments — they had “no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.”  But that absence is understandable.  It’s not like the NMTs were organized and conducted by the United States.  It’s not like the CMCR’s discussion of criminal membership focused on how the NMTs applied that crime.  And it’s not like the CMCR discussed the NMT judgments on pages 27, 42, 65, 66, 67, 68, 69, 101, 109, and 110 of its opinion.

Must have been an honest oversight.

http://opiniojuris.org/2011/09/10/the-cmcr-invents-the-war-crime-of-conspiracy/

7 Responses

  1. Response…
    Haven’t read it yet, but did they mention the fact that the Supreme Court stated that mere conspiracy was not a war crime — in Hamdan?

  2. Little attention has been paid to the court-packing going on here.  Note that, as in the CMCR’s June Hamdan decision, this is an en banc do-over of an initial panel decision the Pentagon didn’t like.  But Al-Bahlul is worse:  Every single member of the original three-judge panel withdrew or retired.  The case was decided by six judges (not seven as in Hamdan) and four were carryovers from the Hamdan case – all freshly appointed after the January 2010 hearing.  Naturally they cited their own freshly-invented precedent.  

  3. Sorry, that’s five of the six Al Bahlul judges were on the Hamdan en banc, but four of the five were appointed after the initial hearing of Hamdan and Ak Bahlul in January 2010.

  4. Jordan,

    They acknowledge it, but don’t discuss why it was wrong.  They point out it was a plurality decision, so perhaps that’s why they ignore it.

  5. Just finished reading Noah Feldman’s Scorpions.  Justice Jackson offered the theory of conspiracy as a war crime a couple of times, in both the context of Quirin and at Nuremberg.  The theory was much criticized by his colleagues, and subsequently never made into an opinion or into any of the Nuremberg cases.  Interesting how bad theories die hard.

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