Why Hamdan II Dooms Conspiracy as Well as Material Support

by Kevin Jon Heller

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.

http://opiniojuris.org/2012/10/17/why-hamdan-dooms-conspiracy-as-well-as-material-support/

4 Responses

  1. And, in any event, there are several reasons why the Obama Military Commissions are still unlawful.  http://ssrn.com/abstract=1997478 — some of which relate to recognitions in the Supreme Court majority opinion in Hamdan and some of which relate to treaties and customary international law that require equality of treatment (U.S. nationals cannot be prosecuted before the new, special, ad hoc military commissions).

  2. Kevin, the JAG Handbook you cited is a schoolhouse teaching publication, updated annually, and currently called the LOAC Deskbook.  The excerpted quote you cited and the underlying supporting article focus on UCMJ prosecutions specific to command responsibility–an analogous but narrower crime than pure conspiracy, which is punishable as a separate criminal offense under Article 81 of the UCMJ.

    Conspiracy to commit a law of war offense might be prosecutable under the UCMJ, but the underlying offense must be prosecutable under that code.  One historical (admittedly pre-UCMJ) precedent might be the post-U.S. Civil War prosecuction of confederate Capt Henry Wirz for conspiracy against the lives and health of Union POWs.  See William Winthrop, Military Law and Precedents, p. 839 n.5 (2d. ed. 1920) (listing several Civil War commission prosecutions of conspiracy crimes, some for traditional and some for LOW offenses), available along with the Deskbook on the Library of Congress website at http://www.loc.gov/rr/frd/Military_Law/.

    Sincerely, AG (co-editor of the LOAC Deskbook)

  3. Having spent more hours than I care to tally engaged in researching and writing on the subject, including an amici brief for the D.C. Circuit in Hamdan, I fully agree with Kevin’s conclusion that conspiracy is actually an easier charge to disprove than providing material support to terrorism.  The challenge with the latter is that those of us who argued that the government was wrong were essentially having to “prove a negative” with no evidence directly on point — there simply is no consideration of the office in any forum other than U.S. federal courts prior to the charge’s belated appearance in the military commissions after 2006.

    Conspiracy, in contrast, has an actual history behind it, including both general recognition as a substantive offense only in Anglo-American domestic legal systems  and its rejection as a war crime post-WWII.  Yes, one can point to various U.S. trials for this charge, just as one can point to a number of past U.S. trials for a range of offenses from witchcraft to  homosexual sodomy which can no longer be lawfully tried.  To be relevant, one must prove both that the prior U.S. trial was an actual law of war trial at the time (the vast majority of military conspiracy trials that military commission proponents have identified were actually domestic law trials) AND that it is still good law today, which the post-WWII history effectively disproves.

    So while I agree that the JAG LOW handbook is not a particularly authoritative source (nor, for that matter really is the “official” Army Field Manual, FM 27-10 given that it is now more than 50 years old), I think Kevin’s larger argument is much more persuasive than contrary accounts.   

  4. AG and Dave,

    Just to be clear, i didn’t pick the JAG handbook out of thin air.  I mentioned it because the DC Circuit mentioned it in Hamdan II.  Both of you would know far better than I how authoritative it is.

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