Why Hamdan II Dooms Conspiracy as Well as Material Support

Jack Goldsmith offers five thoughts today at Lawfare about the D.C. Circuit’s Hamdan II decision.  I agree with two of his thoughts — that the government is free to rely in future prosecutions on alternatives to material support (MST) such as aiding and abetting terrorism, and that (sadly)  al-Bahlul could be detained indefinitely if he is ultimately acquitted by his military commission.  But I take issue with his claim that Hamdan II does not necessarily mean that the D.C. Circuit will reach a similar conclusion in al-Bahlul regarding conspiracy:

I am less confident than Steve and Ben that this opinion forecloses conspiracy claims in military commissions.  The historical arguments for a conspiracy charge in military commissions under the laws of war, while not slam dunks, are (as Steve and Ben acknowledge) more powerful than similar arguments for material support.

Goldsmith doesn’t tell us why “the historical arguments” for conspiracy are better than for MST.  Instead, he simply flags stray language in the D.C. Circuit’s Hamdan II opinion that international law includes “other similar war crimes” to terrorism, which provides no support for the idea that conspiracy is a war crime, and notes that Justice Kennedy refused to join the Supreme Court’s plurality opinion in Hamdan rejecting the idea that conspiracy is a war crime.  It is certainly possible that the Supreme Court would reject the D.C. Circuit’s methodology for determining whether something is a war crime under international law; it’s also possible that the D.C. Circuit will not apply its Hamdan II methodology in al-Bahlul. But that is very different than saying the historical case for conspiracy is stronger than the historical case for MST.  In fact, I think the opposite is likely true.

To see why, let’s examine the D.C. Circuit’s analysis of MST (pp. 22-25).  Here are the eight reasons why the court concluded — rightly — that “[t]here is no international-law proscription of material support for terrorism.”

• No relevant treaty makes MST a war crime.
• The Hague Convention IV does not mention MST.
• The Geneva Conventions do not mention MST.
• The Rome Statute does not deem MST a war crime.
• The ICTY, ICTR, and SCSL statutes do not deem MST a war crime.
• No international tribunal has ever held that MST is a war crime.
• International-law scholars agree that MST is not a war crime.
• The JAG Law of War Handbook does not identify MST as a war crime.

As any international criminal law scholar knows, points 1-7 apply equally to conspiracy.  No treaty has ever deemed conspiracy a war crime*, no statute of an international criminal tribunal has ever deemed conspiracy a war crime, no defendant has ever been convicted of conspiracy by an international criminal tribunal, and no ICL scholar I know considers conspiracy a war crime (under international law).  Moreover, not only does the JAG handbook not identify conspiracy as a war crime, it specifically notes (p. 197) that “[n]o separate crime of command responsibility or theory of liability exists, such as conspiracy, for command responsibility in the UCMJ.”

In fact, as I said, the historical case against conspiracy is even stronger than the historical case against MST.  First, although Article 6 of the Nuremberg Charter criminalized “conspiracy to commit” crimes against peace, crimes against humanity, and war crimes, the IMT specifically — and famously — rejected the idea that conspiracy was a “new and separate crime” and limited conspiracy to crimes against peace. Second, and most importantly, as I have discussed before, 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.”  As a result, although a number of defendants were charged with conspiring to commit war crimes, none were ever convicted of the crime.

Finally, I disagree strongly with Goldsmith’s fourth point: “along one dimension yesterday’s court of appeals decision strengthens the legitimacy of military commissions by demonstrating that any military commission decision will be subject to vigorous judicial review.”  What it actually demonstrates is that Congress made a serious error when it created the Court of Military Commission Review, which lacks even basic competence in international law — as its terrible “close enough” decisions in both Hamdan II (MST) and al-Bahlul (conspiracy) indicate.  Goldsmith’s claim would be more persuasive if the existence of the CMCR hadn’t prevented “vigorous judicial review” of Hamdan’s MST conviction and al-Bahlul’s conspiracy conviction for nearly two years.

* The Nuremberg Charter did not consider conspiracy a war crime; it considered it a distinct kind of offense.