Joint Criminal Enterprise Was Also Dismissed in Khadr

On 2 February 2007, the Office of the Chief Prosecutor (OCP) caused charges to be sworn against Mr. Khadr. (See Sworn Charges, Appellant’s Appx., Ex. K.) Charge III (conspiracy) includes the allegation that Mr. Khadr “conspired and agreed” with named individuals to commit offenses triable by military commission. (Id.) In addition, in apparent reliance on the Secretary’s ultra vires attempt to enlarge the definition of “conspiracy,” the OCP included the allegation that Mr. Khadr did “willfully join an enterprise of persons who shared a common criminal purpose” to commit various offenses triable by military commission. (Id.) The sole specification of the charge alleges a number of overt acts in furtherance of the “enterprise and conspiracy.” (Id.) On 24 April 2007, the Convening Authority referred amended charges (including Charge III) for trial by military commission. (See Referred Charges, Appellant’s Appx., Ex. J.)

On 11 January 2008, the defense moved to strike the “enterprise” language from Charge III as surplusage. (See Def. Mot., Appellant’s Appx., Ex. H.)1 On 4 April 2008, finding that the Secretary had gone “beyond the elements for conspiracy” in purporting to define conspiracy to include joining a criminal enterprise, the Military Judge concluded that the Secretary’s effort was “contrary to or inconsistent with” the MCA. The Military Judge therefore correctly ruled in favor of the defense and ordered the surplus “enterprise” language to be stricken from Charge III. (See Ruling on Def. Mot., D-019, Appellant’s Appx., Ex. F.)

Unlike in Hamdan, the government appealed the commission’s ruling. The Court of Military Commission Review (CMCR) rejected the appeal for procedural reasons instead of substantive ones — which is probably a good thing, because the CMCR has proven time and again that it cannot be trusted with substantive legal questions.