Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.

Margulies:

Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one.

Margulies:

Given a completed crime, international tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY) have readily accepted conspiracy (or cognate theories such as Joint Criminal Enterprise (JCE)) as a form of liability.

No. Neither the ICTY nor any other international tribunal has ever accepted conspiracy as a mode of liability. Convictions have always been based on supposedly “cognate” modes (ie, modes that kinda, sorta look the same) such as JCE.

Margulies:

While Bahlul has argued that the government abandoned its enterprise theory, that assertion is misleading: As I show in this Harvard Journal of Law & Public Policy piece, the government dropped a far broader RICO-based theory based on mere joining of a terrorist group, not the active participation required under JCE and demonstrated at al Bahlul’s trial.

In Margulies view, then, the government did not actually charge al-Bahlul with conspiring to commit war crimes and actually committing war crimes via JCE. Instead, it charged al-Bahlhul with two different inchoate offences, both of which  were contained within the word “conspires”: (1) the inchoate crime of conspiracy; and (2) the inchoate crime of membership in a criminal organisation.

This is a problematic claim, to say the least. Most importantly, the idea that the government initially charged al-Bahlul with two different inchoate offences and then dropped the broader inchoate offence makes no sense given the provision in the Military Commissions Act al-Bahlul was charged with violating, what is now § 950t(29) (“Conspiracy”). Membership in a criminal organisation is broader than conspiracy in only one respect: it does not require the defendant to commit an overt act in furtherance of the conspiracy. The absence of an overt-act requirement was the defining feature of membership in a criminal organisation at the IMT, the only international tribunal that has ever prosecuted the offence. And it is the defining feature of conspiracy to commit RICO. Yet the conspiracy provision in the MCA specifically requires the defendant to commit an overt act:

Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished…

Margulies would thus have us believe that a provision in the MCA that specifically requires an overt act actually includes both an inchoate offence that requires an overt act and an inchoate offence that does not require an overt act. I will leave it to the reader to decide whether that argument makes sense. I’ll simply note, by way of conclusion on this point, that the government apparently has no idea that it originally charged al- Bahlul with an inchoate offence that did not require an overt act, given that it originally charged an overt act in connection with both its “agreement” theory and its “enterprise” theory:

In furtherance of this enterprise and conspiracy, al Bahlul and other members or associates of al Qaida committed the following overt acts…

Moving on. Margulies:

Congress authorized commissions to try a defendant for conspiracy to commit war crimes (e.g., the murder of civilians) because Congress sought to promote deterrence and reduce impunity. To achieve these twin goals, Congress empowered the government to hold accountable those belligerents in an armed conflict whose plans to murder civilians were still in process.

This is teleological reasoning that would make even the most activist international judge blush. Why should we permit the military commissions to hear cases outside of their “accepted jurisdiction”? Because doing so would “promote deterrence and reduce impunity.”

Congress’s authority under the Necessary and Proper Clause to enact legislation that is “conducive” to exercise of its Article I powers surely empowers Congress to give the Executive Branch the option of a military commission in a narrow range of cases when logistical or security obstacles to civilian prosecution appear unduly arduous. (See, for example, the discussions of Congress’s power under the Necessary and Proper Clause in United States v. Comstock and McCulloch v. Maryland.) Military commissions cannot and should not replace Article III courts, but they can help bridge logistical and security gaps that terrorists would otherwise exploit.

In other words, we should also permit the military commissions to hear cases outside of their “accepted jurisdiction” because prosecuting bad guys in courts that actually do have jurisdiction is just so darn hard.

Margulies:

Al Bahlul’s own admitted complicity in a clear and complete war crime — the September 11 attacks — is a further limit on commissions’ intrusion into Article III’s domain. Al Bahlul, as members of the commission specifically found and the en banc DC Circuit acknowledged in its 2014 decision, engaged in acts that “directly relate” to September 11.

Put more simply: we should permit the military commissions to hear cases outside of their “accepted jurisdiction” because, c’mon, al-Bahlul has already confessed to the war crimes he wasn’t charged with actually committing.

Margulies:

Al Bahlul would prevail if the Court’s Article III jurisprudence hinged on what Justice O’Connor, in Thomas v. Union Carbide, derisively termed a “doctrinaire reliance on formal categories.” Fortunately, the Court rejected this rigid approach, to avoid what Justice O’Connor in Schor called “constrict[ing] Congress’s ability to take needed and innovative action.” Justice O’Connor’s pragmatic test respects Congress’s Article I prerogatives, protects Article III courts, and supports al Bahlul’s conviction.

Yeah, screw that principle of legality. It’s not like this is a criminal case or anything. I will simply repeat what I said a couple of years ago, once again breaking Godwin’s Law: abandoning “doctrinaire reliance on formal categories” in order to convict a defendant of a non-existent war crime in a court that has “accepted jurisdiction” only over war crimes and then justifying that abandonment by invoking national security and the defendant’s evident guilt is disturbingly similar to the Nazis’ open embrace of analogical reasoning.

I’m old fashioned. I believe in the principle of legality. I believe that courts should only hear cases over which they have jurisdiction. I believe that defendants should only be convicted of actual crimes. Al-Bahlul’s conviction for conspiracy as an inchoate offence fails on all three counts.

If that makes me a 9/11 truther, I’m a 9/11 truther.