The Problems with “Criminal Membership”

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.