The Amicus Brief Urges Adoption of JCE — Which the Prosecution Repudiated!

As I noted in my first post, the amicus brief’s central argument is that it does not matter that al-Bahlul was convicted of a non-existent war crime — conspiracy as an inchoate offence — because (p. 13) “the defendant had adequate notice that he was charged with conspiracy as a mode of liability for a completed war crime and was offered a fair opportunity to put on a defense.” By “conspiracy as a mode of liability,” the brief means joint criminal enterprise (JCE); as it says, (p.7) “conspiracy as a mode of liability precisely tracks the elements of JCE.”

The amicus brief’s argument thus depends on the idea that al-Bahlul had “adequate notice” that he was being charged with war crimes on the basis of JCE. In my first post, I pointed out that the charge sheet did not mention JCE and that the military commission was never instructed on JCE. Having reviewed the trial record, I now realize why that’s the case: the prosecution specifically disclaimed reliance on JCE prior to trial. Here is the relevant exchange from the record (emphasis mine):

R. 109

20 MJ [COL GREGORY]: But for now, please announce in open court
21 the changes so that everyone can hear in both English and in Mr.
22 Bahlul’s language.
23 TC [MAJ COWHIG]: Sir, the government moves to amend Charge I

R. 110

1 and its Specification by striking the language beginning on the third
2 line of this specification.
3 MJ [COL GREGORY]: Wait one second. Do we have the Arabic
4 translation of the original charge for Mr. Bahlul to see, if he would
5 like, at this point?
6 [The accused commented briefly in Arabic, but his comment was not
7 directly translated into English.]
8 TC [MAJ COWHIG]: Your Honor, if we could ask the translator to
9 translate the statement of the accused.
10 MJ [COL GREGORY]: Yeah, I need that back in English, please.
11 ACC [MR. AL BAHLUL]: For now, I’m fine with what is going on in
12 court.
13 MJ [COL GREGORY]: Okay. You can proceed; but please make sure
14 he gets it in writing as soon as possible.
15 TC [MAJ COWHIG]: Yes, sir.
16 Striking the language, “join al Qaeda, an enterprise of
17 persons who share the common criminal purpose that involved, at least
18 in part, the commission or intended commission of one or more
19 substantive offenses triable by military commission and did.”
20 By striking the language in the second to last line of the
21 first page of the charge sheet, “the common criminal purpose of the
22 al Qaeda enterprise and of.”
23 [The court reporter signaled for the trial counsel to pause.]

The trial judge accepted the prosecution’s request — and did so specifically because both he and the prosecution agreed that deleting the reference to JCE from Charge 1 (the conspiracy count) was to al-Bahlul’s advantage (emphasis mine):

R. 112

MJ [COL GREGORY]: Well, the government moves to amend the
18 charges.
19 Major Frakt, are you prepared to state whether or not you have
20 an objection?
21 DC [MAJ FRAKT]: No objection.
22 MJ [COL GREGORY]: You may make the amendment. It’s deleting
23 language. It adds nothing. I agree that it’s a minor change; and

R. 113

1 usually when language is deleted, it’s to the benefit of the accused
2 anyway.
3 Would you like to go on to your preadmission of exhibits
4 that you mentioned you would like to do, or is there anything else
5 regarding this?
6 TC [MAJ COWHIG]: Perhaps just one more point, Your Honor: That
7 it does not change the nature of the offense, other than to reduce
8 the offense.
9 MJ [COL GREGORY]: That would be my interpretation: It reduces
10 the offense.

The elimination of JCE also came up after trial, when the judge instructed the military commission. After reading the jury instructions to the commission, the judge realized that he had included language in the instructions that implied the commission could convict al-Bahlul on the basis of either conspiracy as an inchoate crime or JCE. He thus made clear to the commission that JCE was not, in fact, at issue in the case (emphasis mine):

R. 881

1 Colonel, members, and I apologize. But as you noticed I
2 corrected a couple of things as we were going through there that
3 aren’t right and I want to correct them. And I’ve corrected them on
4 this original. And so I’m just–for your benefit I’m going to call
5 them out. There aren’t that many. But then you can just make pen
6 and pencil notations on yours.
7 First on page 4, last line, that “and” should be an “or”.
8 Page 5, paragraph beginning two or more persons, the third line of
9 that paragraph, where it says, “agreement or enterprise”, please
10 strike the words “or enterprise”, that’s not before you.
11 Then if you look at the next paragraph that starts, “the
12 agreement or enterprise”, again, please delete “or enterprise” there.

These exchanges are devastating to the amicus brief. The brief is not simply asking the DC Circuit to uphold al-Bahlul’s conviction on the basis of a mode of liability that was not mentioned in the charge sheet and that the military commission was not asked to consider. It is asking the DC Circuit to uphold al-Bahlul’s conviction on the basis of a mode of liability that the prosecution disclaimed prior to trial and that the judge specifically instructed the military commission not to consider. At the risk of understatement, that is simply unacceptable.