Peter’s reply is posted at Lawfare, and it addresses both my criticisms (here and here) and Steve Vladeck’s (here). The reply is largely non-responsive to the points that I made in my posts; most of it is dedicated to establishing that the evidence presented at trial is sufficient to conclude that al-Bahlul participated in a JCE to commit 9/11 — and idea that I never contested.
There are, however, two basic problems with Peter’s argument. First, it is undeniable that the prosecution never legally proved the existence of a JCE to commit the various war crimes obliquely referenced in the conspiracy charge, because the commission was not instructed on the elements of JCE and — as the amicus brief admits — the commission was specifically and erroneously informed that it could convict al-Bahlul even if it did not believe a crime was completed. Moreover, as I pointed out in my last post, the prosecution specifically disclaimed reliance on JCE prior to trial. Whether the jury allegedly found enough facts from which enterprising scholars can cobble together a JCE is thus irrelevant.
Second, and perhaps even more important, Steve correctly points out in his post that JCE is not even an available mode of liability in a military commission. Here is the text of 10 USC 950q:
Any person punishable under this chapter who—
(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;
(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or
(3) is a superior commander who, with regard to acts punishable by this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof,<
is a principal.
The amicus brief’s analogical reasoning, therefore, is even more problematic than I described in my initial post. The brief not only wants the DC Circuit to affirm al-Bahlul’s conviction for a non-existent war crime on the basis of conspiracy’s resemblance to an uncharged mode of liability; it wants the DC Circuit to affirm al-Bahlul’s conviction for a non-existent war crime on the basis of conspiracy’s resemblance to an uncharged mode of liability that the government could not have used to prosecute al-Bahlul. If the government wanted to convict al-Bahlul of the uncharged war crimes obliquely referenced in the conspiracy charge (and remember, JCE is not a war crime; it is a means for holding a defendant responsible for war crimes perpetrated by others), it would have had to allege that he committed, aided, abetted, counseled, ordered, procured, or was responsible as a commander for them. It could not have alleged that he was responsible for them via JCE. So once again Peter’s argument about JCE is irrelevant.
Both problems are fatal to Peter’s argument (and the amicus brief’s) that the DC Circuit should uphold al-Bahlul’s conviction for a non-existent war crime on the ground that he participated in a JCE to commit the uncharged war crimes obliquely referenced in the conspiracy charge. But there are three other problems in Peter’s reply worth noting…