An Additional Problem with the Al-Bahlul Amicus Brief (Updated)

by Kevin Jon Heller

On page 23, the amicus brief concludes that al-Bahlul’s “convictions should be affirmed.” Presumably, that means the brief is asking for the DC Circuit to affirm al-Bahlul’s conviction for conspiracy as an inchoate offence — that was the charge on the charge sheet, and that is the charge that was upheld by the military commission in its findings. (The other convictions were for solicitation, which is also an inchoate offence, and for material support for terrorism, which the DC Circuit has held is not a war crime for purposes of the military commissions. The amicus brief does not address material support.)

Here is the problem: the DC Circuit cannot uphold a conviction for conspiracy as an inchoate offence even if it accepts the amicus brief’s argument. The brief freely concedes (p. 5) that conspiracy as an inchoate offence is not a war crime under international law. Instead, it argues that the DC Circuit should convict al-Bahlul on the basis of conspiracy as a mode of liability instead of convicting him for conspiracy as an inchoate offence. But that would mean (if the DC Circuit agreed with the amicus brief) that al-Bahlul was not guilty of conspiracy, but was guilty of the war crimes described in the overt acts — presumably, those mentioned in the conspiracy count: Murder of Protected Persons, Attacking Civilians, Attacking Civilian Objects, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, and Terrorism. That is what a mode of liability does: it holds a defendant responsible for completed crimes. The defendant is not convicted of “conspiracy” or “joint criminal enterprise.”

The amicus brief, then, is not actually asking the DC Circuit to uphold al-Bahlul’s conviction for conspiracy as an inchoate crime. A court cannot convict a defendant of a crime that does not exist. What it is really asking the DC Circuit to do is replace his flawed conviction for conspiracy as an inchoate offence with convictions for multiple — and completely unrelated, from an elemental standpoint — war crimes.

That is, to put it mildly, a deeply problematic request. The amicus brief openly admits that “[t]he charge sheet contained an error, since it failed to allege a completed war crime” (p. 5) and that “the instruction on conspiracy in the instant case was erroneous, because it permitted the members of the commission to find the defendant guilty of conspiracy based on mere agreement, without a completed crime” (p. 20). Yet the brief still argues that those errors were “harmless,” even though — if it gets its way — al-Bahlul will be convicted of at least six completed war crimes instead of conspiracy as an inchoate offence.

Harmless error indeed!

UPDATE: Steve Vladeck expands on the points made in my two posts at Lawfare.

5 Responses

  1. One of the posts here recently on ‘fragmentation’ and ‘plurality’ argued, more or less, that there is no general part in international criminal law and that that those rules are either tribunal-specific or are otherwise to be found in the national law applicable in any given case. On that view (and perhaps depending on whether conspiracy is part of the general part or the special part), this is all something of a storm in a teacup, since conspiracy is undoubtedly a crime under American criminal law.

  2. No — US courts have made clear that the military commissions can only prosecute acts that qualify as war crimes under international law. And the USG has conceded that conspiracy is not such an act. That is precisely why the USG is now trying to redescribe what it actually charged (conspiracy) with something (JCE) that does, in fact, exist under international law.

  3. Well actually on that view the answer is yes, because as you point out the cause of the controversy, in the first instance, is US national law.

  4. This is five level US foreign relations card monte.  The US law says international law crimes can be charged (first level).  Conspiracy is charged (second level).  Conspiracy is found to be American Laws of War crime (third level).  On f’ing appeal, Conspiracy is found not to be an international laws of war crime (fourth level). On f’ing en banc reconsideration of appeal, all this is tried to be reshaped as a international law of war mode of liability (fifth level).
    The bet being made is that because Al-Bahlul is a bad guy who we hate, the en banc folks will do an American Nullum Crimen Sine Lege that will make this ok.  Then, when one looks around to comfort this approach, the example that comes up is Godwinian.
    This reminds me of those folks citing to the Seminole Wars.  Just keep digging in the swill of US foreign relations law and hope something sticks.
    Of course, in the background, is a cert petition to the Supreme Court hoping that putting this below is something that can be made to fly by Robertsian sleight of hand.
    I leave to the side whether the admissions of Al-Bahlul were voluntary under a traditional standard of voluntariness.  Given the torture, I doubt that, but it seems that many are long passed that kind of questioning of the underlying evidence that is concocted in this deadly game of legal card monte.

  5. Having read Vladeck’s piece now, please note that in my SIU article coming out any day now on the 9/11 military commission I go to some length to highlight the several levels of moving parts that surround these nested commissions.   The question of the extent to which the Constitutiom is both operable beyond habeas and applicable beyond habeas is a huge part of this.  if the Constitutional sections noted are not at all operable yet alone applicable, then stability for the relevant jurisprudence is undermined whether from court-martial or federal criminal law. That loosening of the underpinning for any precedent is a way to bootstrap special military commission wiggle room. I see this brief as an effort to walk into that wiggle room and apply it in the en banc. It is little more than seeking a second bite at the apple arguing a more destabilized vision of the law.  And, picking your bad guy to hope that the atmospherics will work to get the judges to go along with finding a way to reverse themselves.  This is legal manipulation and is destabilizing  to the legal norms that underpin the Appeals Court. But, the judges are political creatures in these cases and I wonder whether they have the intestinal fortitude to hold the line against Executive legal manipulation such as what is being sought here. At some point, the court has to assert its judicial force clearly to tame the ruthless instrumentalizing  of legal process. Will these judges have that ability or have they been so degraded by the Executive manipulating all these 12 years that they will roll over like a glorified  Court of Military  Commission Review. 

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