Peter Margulies’ Sur-Reply

Peter has responded at Lawfare to my most recent post. I think we’ve taken the argument about as far as we can, so I’ll give Peter the last word. Suffice it to say that, according to Peter’s new post, there is nothing wrong with an appellate court upholding a defendant’s conviction (1) for a non-existent war crime — conspiracy; (2) on the ground that the non-existent war crime bears a resemblance to a mode of liability that is not within the jurisdiction of a military commission — JCE; because (3) that mode of liability bears a resemblance to a mode of participation that is within the jurisdiction of a military commission — aiding and abetting. We can only hope that the military commissions themselves, and the courts that review them, do not take such a cynical approach to the principle of legality. But I’m not going to hold my breath.

PS. Peter’s invocation of aiding and abetting tells us all we need to know about his willingness to rely on analogy to paper over vast differences between criminal-law doctrines. JCE is a form of principal liability; aiding and abetting is a form of accessorial liability. The actus reus of JCE requires an enterprise, a common plan, and a contribution to the plan; the actus reus of aiding and abetting requires no plan at all, just assistance to a crime that has a substantial effect on its commission. The mens rea of JCE requires intent to commit the crimes contemplated by the common plan; the mens rea of aiding and abetting requires only knowledge that assistance will contribute to a crime. But other than that, JCE and aiding and abetting are exactly the same…

PPS. I feel compelled to set the record straight concerning the government’s decision to drop JCE from the Hamdan case. Peter rejects that description of what happened, arguing that “[t]he government dropped the language after a judge in Salim Hamdan’s case rejected the enterprise concept from the Racketeering Influenced and Corrupt Organizations Act (RICO), not from JCE.” Peter’s argument, however, is specifically contradicted by Judge Allred’s decision. As Judge Allred notes (p. 102 of the document here), in defending the “enterprise theory,” the government argued (emphasis mine) that “[t]here is also historical precedent… in the law of war for an enterprise theory of liability that is neither present nor required in military law.” The italicized language puts beyond doubt that the government was arguing JCE, not some kind of RICO liability. Last time I checked, RICO was not part of the law of war.