Thoughts on Peter Margulies’ Reply to My Criticism of the Amicus Brief (Updated)

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.

First, Peter argues that “[b]oth the ICTY and the ICTR have characterized JCE as a form of responsibility under customary international law that precisely tracks the elements of conspiracy as a mode of liability for a completed war crime.” As pointed out above, JCE is not an available mode of liability in a military commission under 10 USC 950q. The jurisdiction of military commissions is indeed limited by customary international law; that is why al-Bahlul cannot be convicted of conspiracy as an inchoate crime. But that does not mean that a military commission can apply any substantive penal provision of customary international law. It’s jurisdiction is also limited by domestic US law.

Second, the amicus brief’s argument is not in any way supported by Kvocka and Mucic, in which the ICTY Appeals Chamber held that it was not fatal error for an indictment to fail to specify the precise mode of liability on which the prosecution was relying. There is a fundamental difference — one that Peter fails to acknowledge — between the situation in al-Bahlul and the situations in Kvocka and Mucic. In both of the ICTY cases, the indictment clearly specified the substantive crimes the defendant was charged with; the only question was the mode of liability the prosecution intended to use connect the defendant to those crimes. In al-Bahlul, by contrast, the defendant was charged only with conspiracy as an inchoate crime; he was not charged with the substantive war crimes obliquely referenced in the conspiracy charge. So the amicus brief is not simply asking the DC Circuit to permit variance between the mode of liability in the charge sheet and the mode of liability it supposedly relied on at trial; it is asking the DC Circuit — as I pointed out in my second post — to permit variance between the war crime alleged in the charge sheet (conspiracy as an inchoate crime) and war crimes not charged in the charge sheet (the ones obliquely referenced in the conspiracy count). Again: JCE is not itself a substantive war crime; it is simply a way to hold a defendant responsible for war crimes perpetrated by others. Nothing in Kvocka or Mucic suggests that an appellate court can convict a defendant of a crime not charged in the indictment, even one allegedly proven at trial. Nor has any other judgment in the history of the ICTY or ICTR. (Or of any other international criminal tribunal, for that matter.)

Third, and finally, Peter’s defense of the amicus brief with regard to Justice Steven’s plurality opinion in Hamdan I is simply incorrect. He tries to explain away the direct contradiction between the actual text of footnote 32 and the brief’s claim concerning footnote 32 by arguing that I “fail to note that, according to Justice Stevens, those other offenses also were insufficient predicates for commission jurisdiction in Hamdan’s case.” JCE is also an insufficient predicate, as explained above. More importantly, though, the footnote is actually remarkably clear: an appellate court cannot uphold the conviction of a defendant on the ground that the evidence indicates he committed a crime that was not charged in the indictment. That is precisely what the amicus brief is asking the DC Circuit to do, because JCE is a mode of liability.

Peter concludes his reply by mischaracterizing my disagreement as “not with amici, but with developments in ICL and U.S. criminal procedure law that [I] find unfair to defendants.” As I’ve shown, nothing in ICL provides any support whatsoever for the amicus brief’s radical claim that the DC Circuit is entitled to convict al-Bahlul of a non-existent war crime (conspiracy) on the basis of a mode of liability that is not within the jurisdiction of a military commission (and that the prosecution disclaimed prior to trial). That is the most dangerous kind of analogical reasoning — which is why three American judges deemed it criminal in the Justice case.

UPDATE: It is worth noting that the government is currently arguing in the 9/11 case that 10 USC 950q permits the government to rely on JCE even though the statute does not include it. That argument was rejected by the trial judge in Hamdan (on the ground that the authors of the Military Commissions Act did not intend to make JCE available, as indicated by the text of 10 USC 950q), and the government chose not to appeal that ruling. But I would not be surprised if the 9/11 military commission held that 10 USC 950q “implicitly” includes JCE; if nothing else, the history of the military-commission system demonstrates that the principle of legality is ultimately far less important than the need to convict the bad guys.