The Problems with “Criminal Membership”

by Kevin Jon Heller

I’ve received a number of emails arguing that I do not take seriously enough the CMCR’s analogy between conspiracy and the crime of membership in a criminal organization.  The obvious response is that: (1) criminal membership is not a war crime; (2) the elements of conspiracy and criminal membership are completely different; (3) the tribunals on which the CMCR relied for criminal membership specifically and repeatedly rejected the idea that conspiracy was a war crime; (4) the Military Commissions Act doesn’t “define” the crime of criminal membership; and (5) al-Bahlul was not charged with criminal membership.

All that aside, it’s worth pointing out that even if we completely abandon due process and say its fine to recharacterize the charges against al-Bahlul so that they resemble a crime Congress has not defined as criminal, al-Bahlul could still not be properly convicted of criminal membership in al-Qaida if we take the Nuremberg precedent seriously.  Here is what the CMCR says:

Article 9 of the London Charter empowered the IMT to “declare . . . that the group or organization of which the individual was a member was a criminal organization.” 1 T.M.W.C., supra n. 36, at 10, 255. Article 10 of the charter empowered the competent national authorities to try individuals for membership alone in any organization declared criminal by the IMT before national, military or occupation courts. Id. “In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.” Id.

Six organizations, with about 2,000,000 members in Germany and about 500,000 in the U.S. zone, were indicted as criminal organizations before the IMT.82 Following vigorous debate on the scope of membership liability, particularly concerns regarding the individual criminal liability of persons with widely disparate levels of knowledge, responsibility, and authority within their respective organizations, the IMT determined that… “a member of an organisation which the Tribunal has declared to be criminal may be subsequently convicted of the crime of membership and be punished for that crime by death.”

As the CMCR itself acknowledges, individual members of the SS, Gestapo, and Leadership Corps could only be charged with and convicted of criminal membership because the IMT, following indictment and an adversarial trial, had previously concluded that those organizations were criminal.  Has the United States ever indicted al-Qaida as a criminal organization?  Has it ever argued its criminality in an adversarial trial?  Has a court ever concluded that al-Qaida is a criminal organization following such a trial?  Has a court ever had the opportunity to exclude certain “branches” of al-Qaida from the larger organization, as the IMT did with certain Nazi organizations, such as the SS’s Riding Units?

I can already hear the response from military commission enthusiasts: how much more evidence do we need that al-Qaida is a criminal organization?  Isn’t it obvious that it is?  Such a response, of course, is tantamount to saying that we don’t have to give an obviously guilty defendant (here, al-Qaida as an organization) a fair trial — a position that hardly reflects the commitment to due process that the U.S. once took seriously, even in military trials (most notably in the NMTs).

Also note the dishonest ellipsis in the CMCR’s portrayal of Article 9 of the London Charter: “Article 9 of the London Charter empowered the IMT to ‘declare . . . that the group or organization of which the individual was a member was a criminal organization’.” Here is what the sentence actually says (emphasis added):

At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.

In other words, the London Charter did not permit an individual to be convicted solely of criminal membership; he could be convicted of criminal membership only if he had committed at least one substantive crime as part of the criminal organization.  Indeed, both the Ministries and Einsatzgruppen tribunals held exactly that (see pp. 293 of my book.)

Here, of course, the response will no doubt be that al-Bahlul was convicted “in connection with any act of which the individual may be convicted” — namely, material support for terrorism.  In which case a conviction for one non-existent war crime would serve as the basis for conviction of another non-existent war crime.

The military commissions in a nutshell.

5 Responses

  1. “Appellant had knowledge that al Qaeda engaged in terrorism before he joined and intentionally provided himself and other material support and resources to al Qaeda, including various propaganda products intended for al Qaeda recruiting and indoctrination training, and inciting others to commit terrorism. He was also convicted of facilitating the pledges of loyalty to bin Laden and preparing the propaganda declarations styled as Martyr Wills of two suspected September 11, 2001 hijackers/pilots, operating and maintaining data processing equipment and media communications equipment used to obtain the first reports of the September 11 attacks to bin Laden and other al Qaeda leadership. In addition, he was convicted of researching the economic effect of those attacks on the United States and providing the results of his research to bin Laden, and acting as media and personal secretary for bin Laden.”
    So this is a case where someone acted in a staff position and directly supported the planning and recruiting of the 9/11 attacks, but was not himself in the chain of command during the attacks and did not personally commit any of the criminal acts. This is not the case of “membership” in the sense of a German soldier who joined the SS.
    Suppose you had a German SS officer who was a quartermaster for the guards at a concentration camp. He provided the food and supplies, knew that the purpose of the camp was to kill Jews, and maybe even provided some calculations about the disposal of bodies. However, he never personally killed or ordered the death of anyone. Can he be charged for knowingly providing support to a military unit engaged in a war crime when he himself did not directly commit a criminal act?
    This is not abstract membership in a criminal organization. There is direct and knowing participation in the criminal enterprise planning the deaths of innocent civilians, but not direct participation in the killings themselves.

  2. @Howard: So charge him with participation in an actual crime.

  3. The core issue here is “membership” crime. In civilian domestic criminal law you must be charged with something you have done, although domestic criminal “conspiracy” may involve doing overt acts to support a crime that never takes place. In military (non-criminal) law you are held as an enemy combatant (prisoner of war) based on your membership in an armed enemy unit without regard for anything you have individually done. Generally, a soldier cannot be charged with a war crime for planning to commit a war crime or training to commit a war crime if the war crime never actually happens (unlike a civilian conspiracy). Once a war crime occurs, however, anyone involved directly in its planning or chain of command can be liable.

    This case now asks: When a military unit is formed with the intent of committing war crimes, and it commits these crimes, and an individual joins the unit knowing this and is a member advancing the general aims of the unit, does he have to directly participate in a specific war crime or can he be charged simply because of his membership in the unit.  The CMCR lists a number of cases of “membership” crimes, including the Civil War “jayhawk” comment.

    It seems that the CMCR is trying to avoid the specific criticism that Kevin advances by (and this is reading between the lines) advancing a new definition of “Conspiracy” that is similar to but distinct from the established civilian criminal theory of Conspiracy. Different because it involves War Crimes. Different because the War Crimes have to actually happen (whereas in civilian conspiracy the actual crime may be prevented). However, in this Military Conspiracy the crime is committed by the unit and not by individual criminals, and knowing and voluntary joining of the unit then becomes a crime in itself.

    The accused may not then be responsible directly for the crimes of the unit. In this case, the accused did not commit murder and was not so charged, although the unit commited murder. He was charged with a different crime of joining a unit knowing that it intended to commit murder in violation of the Laws of War and that it indeed committed that murder (as a unit). Although he provided material support for a terrorist organization, that is a separate charge because a military unit can commit War Crimes (like genocide) that are not terrorism and because one can provide support without becoming a member of a criminal military unit.

    The decision has to be read as a whole. At the beginning the CMCR points out that Congress has the power “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations” It notes that Congress does not “create” these crimes, but only “defines” them. Thus the MCA may provide an explicit definition, but it is for the court to decide if the underlying Law of Nations being defined actually exists. 

    Congress used a term “Conspiracy” and some language that is very similar to the domestic criminal definition. We are all agreed that that type of Conspiracy does not exist in international law. So the CMCR then enumerates dozens of prior cases where Military Commissions and International Tribunals have tried something they also called “Conspiracy” (though defined differently), and some things that are similar to conspiracy, or are “membership” offenses, to suggest that there is a customary international law sufficiently similar that Congress in the MCA could be held to be Defining it under the Define and Punish clause. Whatever it is, it is not domestic civilian criminal Conspiracy just because the same word is used.

  4. “Whatever it is, it is not domestic civilian criminal Conspiracy just because the same word is used.’  That seems a bit weak for the principle of legality.

  5. Response…
    See also The Prosecutor v. Milan Milutinovic, Case No. IT-99-37-AR72 (ICTY, Appeals Chamber, 21 May 2003), para. 26 (“Criminal liability pursuant to joint criminal enterprise [JCE] is not a liability for membership or for conspiracy to commit crimes”)

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