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