Wherein I Break Godwin’s Law in Relation to the New Al-Bahlul Amicus Brief

A group of scholars and former military lawyers, including a number of good friends, have filed an amicus brief that argues the DC Circuit should uphold al-Bahlul’s conviction by redescribing his conviction for conspiracy as an inchoate crime, which does not exist under international criminal law, as a conviction for completed war crimes via conspiracy as a “mode of liability,” which does exist under international criminal law. In their view, the fact that al-Bahlul was charged only with conspiracy as an inchoate offence is irrelevant, because (p. 13) “the defendant had adequate notice that he was charged with conspiracy a mode of liability for a completed war crime and was offered a fair opportunity to put on a defense.”

No, I am not unfairly describing the amicus brief. It really does argue that. And how, exactly, did al-Bahlul have “adequate notice” that he was being charged not with conspiracy as an inchoate crime, as alleged in the charge sheet, but with conspiracy as a mode of liability for a completed war crime, which was not alleged in the charge sheet? Well, because (p. 16) “[w]hile the Convening Authority in al-Bahlul’s case did not cite universally accepted war crimes such as aiding and abetting or conspiracy as a mode of liability for a war crime” — note that these are not actually war crimes; they are ways to hold individuals accountable for war crimes — “the list of overt acts attached to the charge sheet provided the defendant with adequate notice.” In other words, al-Bahlul should not have foolishly inferred that he was charged with conspiracy as an inchoate crime from the fact that the charge sheet pleaded conspiracy as an inchoate crime; what he should have done is look at the overt acts listed in support of conspiracy as an inchoate crime and figured out that, despite the charge itself, he was actually being charged with conspiracy as a mode of liability for the completed war crimes mentioned in the overt acts.

And, of course, al-Bahlul should have structured his defense accordingly. To be sure, the amicus brief acknowledges (p. 16) that “[t]he defendant offered no evidence” at trial to rebut the conspiracy charge. But that couldn’t possibly be because he believed that he was charged with conspiracy as an inchoate offence — as the charge sheet stated — and that conspiracy as an inchoate offence was not actually a war crime. No, al-Bahlul did know he was actually being charged with conspiracy as a mode of liability for the completed war crimes listed in the overt acts, because (p. 17) “the defendant readily acknowledged that he had committed the charged overt act of administering the bayat to Atta and al Jarrah.” Now, you might wonder why, if al-Bahlul knew he was actually being charged with conspiracy as a mode of liability for the completed war crimes listed in the overt acts, not conspiracy as an inchoate offence as alleged in the charge sheet, he would have admitted to committing the completed war crimes. Doesn’t his “confession” actually indicate that he believed he was charged not with the completed war crimes, but solely with conspiracy as an inchoate offence? I have no answer to that. You’ll have to ask the authors of the amicus brief.

It’s not worth going through all of the sources on which the amicus brief relies. But I do want to point out that the brief fundamentally misstates what Justice Stevens said in Hamdan vs. Rumsfeld (Hamdan I) about conspiracy. According to the brief (p. 15), citing footnote 32 of the plurality opinion, “Justice Stevens cautioned against reliance on the ‘label’ attached to conduct charged in a military commission, asserting that the label mattered less than the ‘succession… of acts’ alleged by the prosecution.” But that is incorrect. Here are the relevant paragraphs of footnote 32 (emphasis mine):

Justice Thomas adopts the remarkable view, not advocated by the Government, that the charging document in this case actually includes more than one charge: Conspiracy and several other ill-defined crimes, like “joining an organization” that has a criminal purpose, “[b]eing a guerilla” and aiding the enemy. See post, at 16–21, and n. 9. There are innumerable problems with this approach. First, the crimes Justice Thomas identifies were not actually charged. It is one thing to observe that charges before a military commission “need not be stated with the precision of a common law indictment,” post, at 15, n. 7 (citation omitted); it is quite another to say that a crime not charged may nonetheless be read into an indictment.

Second, the Government plainly had available to it the tools and the time it needed to charge petitioner with the various crimes Justice Thomas refers to, if it believed they were supported by the allegations. As Justice Thomas himself observes, see post, at 21, the crime of aiding the enemy may, in circumstances where the accused owes allegiance to the party whose enemy he is alleged to have aided, be triable by military commission pursuant to Article 104 of the UCMJ, 10 U. S. C. §904. Indeed, the Government has charged detainees under this provision when it has seen fit to do so. See Brief for David Hicks as Amicus Curiae 7.

In other words, Justice Stevens’ footnote 32 completely contradicts the amicus brief’s argument. Again: al-Bahlul was not charged with completed war crimes via conspiracy as a mode of liability; he was charged solely with the “war crime” of conspiracy as an inchoate offence. If the government had wanted to charge al-Bahlul with the completed war crimes listed in the overt acts, it had literally years to amend the charge sheet accordingly.

But all is not lost for the amicus brief. There is legal precedent for the brief’s “close enough for horse shoes, hand grenades, and military commissions” logic — and yes, I am now going to quite deliberately violate Godwin’s law. That precedent is the Nazi Law to Change the Penal Code of 28 June 1935, which replaced the German Criminal Code of 1871’s robust embrace of the principle of legality with the following provision:

Any person who commits an act which the law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of the penal law and sound popular feeling, shall be punished. If there is no penal law directly covering an act it shall be punished under that law which most closely fits, in regards to fundamental conception.

It is precisely that kind of analogical reasoning, so offensive to even the most minimal notion of the principle of legality, that animates the amicus brief’s argument in al-Bahlul. To say that the DC Circuit should reject the brief’s argument is an understatement.

ADDENDUM: It is worth quoting two additional provisions added to the German Penal Code by the law mentioned above:

Article 170a – If an act deserves punishment according to the sound sentiment of the people, but is not declared punishable in the code, the prosecution must investigate whether the underlying principle of a penal law can be applied to the act and whether justice can be helped to triumph by the proper application of this penal law.

Article 267a – If the main proceedings show that the defendant committed an act which deserves punishment according to the sound sentiment of the people, but which is not declared punishable by the law, then the court must investigate whether the underlying principle of a penal law applies to this act and whether justice can be helped to triumph by the proper application of this penal law.

I am being completely serious when I say that the logic of the amicus brief mirrors the logic of the Law to Change the Penal Code of 28 June 1935. The act charged in al-Bahlul’s charge sheet, conspiracy, is not in fact an act “declared punishable by the law” — by international law, in this case. The amicus brief insists that does not matter, because the “main proceedings” in the case (al-Bahlul’s trial) revealed that he might have been responsible for very different crimes (substantive war crimes, such as murder and terrorism) on the basis of a similar mode of participation (not even another crime) — a mode of participation, moreover, that was not mentioned in the indictment and whose elements were never explained to the commission that determined al-Bahlul’s guilt. (Indeed, as the brief admits on p. 20, the commission was specifically instructed that they could “find the defendant guilty of conspiracy based on mere agreement, without a completed crime” — a fundamental difference between conspiracy as an inchoate crime and JCE.) In essence, then, the amicus brief is urging the DC Circuit to uphold al-Bahlul’s conviction for a crime that international law does not recognize (conspiracy as an inchoate offence) precisely on the ground that the “underlying principle” of that crime — namely, that a person who agrees to commit crimes should be held responsible for those crimes if they are committed — applies to his acts and thus justifies punishing him (“justice can be helped to triumph by the proper application of this penal law”). That does not make the authors of the amicus brief Nazis. But it does mean that the amicus brief is relying on the same kind of analogical reasoning that was at the heart of the Nazis’ perversion of the German criminal-justice system — the same kind of analogical reasoning that was specifically condemned as itself criminal by American judges in the Justice case.