To the list of significant motions to be argued tomorrow during the motions hearing in Al-Nashiri, add this: the defense’s contention that the charge of conspiracy is beyond the commission’s jurisdiction, and must therefore be dismissed. Al-Nashiri has paired this with a claim that the conspiracy count, even if theoretically within the jurisdiction of a law-of-war commission such as this, cannot be applied because of ex post facto restrictions, the Military Commissions Act of 2009 having been passed well after his alleged actions, which occurred the better part of a decade earlier. Al-Nashiri also has mounted a separate threshold challenge, on jurisdictional and ex post facto grounds, to the terrorism charge against him.
In its papers in response, the prosecution does not argue that conspiracy is a recognized war crime under customary international law, and thus within the jurisdiction of Al-Nashiri’s “law-of-war” commission. Its approach is different: As it recently has argued in appellate proceedings before the D.C. Circuit, the United States now claims that the authority to charge conspiracy stems mostly from the Constitution’s grant of warmaking authority to Congress – which, according to prosecutors, it historically has invoked in trying conspiracy before various domestic military tribunals. The emphasis is thus on longstanding American commissions practice, rather than international tribunals’ consistent rejection of conspiracy as a standalone war crime.
The Defense’s Motion
The defense attorneys begin by asking the Commission to “dismiss the charge of conspiracy because Congress has exceeded its authority under the Define and Punish Clause in making it a crime triable by military commission.” And since the matter goes to jurisdiction, the defense also claims that the burden is on the government to demonstrate, by a preponderance of the evidence, that jurisdiction over Al-Nashiri is lawful.
The first of Al-Nashiri’s three main arguments seems anodyne enough: the Commission trying him is a “law of war” commission, and its jurisdiction extends only to war crimes established pursuant to the “Define and Punish” clause found in Article I, Section 8, Clause 10 of the Constitution. The defendant’s support here is mainly the plurality opinion in Hamdan v. Rumsfeld. This contrasted the commissions convened by President Bush with other kinds of commissions, which, according to Al-Nashiri, historically had been employed to “impose military government on areas under either martial law or foreign occupation.” The commission in Hamdan v. Rumsfeld, like the Commission in this case, does not belong to that group, as GTMO is neither subject to martial law nor occupied by the enemy. It follows that “the only charges for which a military commission could be convened against [Al-Nashiri] are offenses against the law of war pursuant to the Define and Punish Clause.”
That raises a question about the limits of Congress’s power under the Clause. Al-Nashiri’s answer, and his second main argument, is that Congress may “define and punish,” as a domestic matter, only those offenses which are, in fact, proscribed by the international laws of war. On this point, he refers to United States v. Arjona, where the Supreme Court said that “whether the offense as defined is an offense against the law of nations depends on the thing done, not on any declaration to that effect by Congress.” He also relies on Quirin and Yamashita, where the question was whether certain offenses stated violations of the laws of war.
Which brings us to the probably-not-to-hard-to-guess punch line: Al-Nashiri’s third argument is that conspiracy is not and has never been an offense against the laws of war. The Hamdan plurality’s finding to that effect is his main support here, along with similar findings by the Nuremburg and other international tribunals. With regard to the Court of Military Commission Review’s decision in United States v. Al-Bahlul – which affirmed a conspiracy conviction – Al-Nashiri notes that the Court there described the status of conspiracy as a question of “enduring and complex controversy,” and that the Court took steps to avoid resolving the controversy definitively. Instead, Al-Bahlul noted that “the acts alleged were identical to a charge of material support for terrorism. Having sustained that charge, it sustained the conspiracy charge by extension.” Yet there is no material support charge in Al-Nashiri’s case, which might permit application of Al-Bahlul by analogy here.
Because conspiracy – standing alone – is not a “crime in itself,” Al-Nashiri thus asks the Commission to reject it.
The Government’s Response
The prosecuting attorneys naturally say the opposite, and ask the Commission to deny Al-Nashiri’s motion. And, as a procedural matter, they open their opposition brief by rejecting the defense’s views regarding the allocation of the legal burden. It falls on the government to demonstrate jurisdiction over Al-Nashiri, the prosecution argues, but it is up him to sustain his facial attack on the constitutionality of the 2009 MCA. And in any event, the defendant is the movant. He therefore must, under Commission rules, establish his entitlement to the relief he seeks.
The government opens with precedent which, in its view, totally forecloses the defendant’s challenge to the conspiracy count. “The [Court of Military Commission Review (CMCR)] has twice squarely rejected the defense’s argument that conspiracy is not an offense triable by military commission,” in the commission cases of United States v. Al-Bahlul and United States v. Hamdan. It is thus not enough for Al-Nashiri to invoke the plurality of Supreme Court justices that earlier sided with his view of conspiracy, in Hamdan v. Rumsfeld. That case predated the CMCR’s decisions in United States v. Al-Bahlul and United States v. Hamdan. “The [CMCR’s] subsequent decisions gave due regard to the [Supreme Court] plurality, but concluded that Congress had constitutionally conferred military commissions with jurisdiction over conspiracy, and those later decisions are controlling.”
Okay. But what if the government is wrong – and recall that the matter is currently before the D.C. Circuit – and the two CMCR judgments do not stop Al-Nashiri’s motion in its tracks? In that event, argues the prosecution, the conspiracy charge would still be valid (and the motion would still be denied) for three main reasons.
The first tracks the government’s current position before the D.C. Circuit in Al-Bahlul: as it argued in that case, the prosecution here says that “Congress properly exercised its Article I war-making powers when it concluded that conspiracy constitutes a violation of the U.S. common law of war triable by military commission.” The source of legislative authority for the 2009 MCA is not, as Al-Nashiri says, just the Define and Punish Clause. There is also Congress’s war-making authority under Article I. And moreover, Congress clearly meant to invoke that latter authority here: the statute refers not only to “offenses triable under the laws of war” (and thus nods in the direction of the Define and Punish Clause); it also mentions offenses “otherwise triable by military commission” (and thus hints at some other legislative power). Congress also repeatedly has used military commissions before, in order to try violations of “the U.S. common law of war,” a category which comprises the “otherwise triable” offenses described by the MCA. Here the government relies on Milligan, treatises by Winthrop and Halleck, and a battery of historical examples in which commissions tried offenses that were not “prohibited war crimes under international law,” but that involved activities which “were historically [considered] offenses punishable under the law of war and were triable by military commission.”
This is the core of the government’s “common law of war” argument: offenses under the “U.S. common law of war” need not be analogous to war crimes under customary international law. Consider spying. A spy’s actions are not considered to be internationally criminal, and yet wartime spying has been considered an offense punishable by military tribunal. The same holds true for aiding the enemy, as evidenced by founding-era Articles of War. All of this adds on to the government’s central contention – that whatever the international consensus about conspiracy, the United States’ practice long has been to “treat conspiracy as an independent criminal offenses under the United States common law of war.” It follows that the Congress could rely on its war-making authority, and create jurisdiction over a charge of conspiracy in this military commission.
Advancing this same point elsewhere in its brief, the prosecution quotes from a Lawfare post in which Vladimos Thravalos argued that a plurality of Supreme Court justices may have erred in their assessment of conspiracy’s historical status under U.S. law. Thravalos’ research, the government claims, “seriously calls into question” the plurality’s conclusions.
To be sure, Article I war powers are not the only game in town, as far as constitutional authority goes. According to the Government, the Define and Punish Clause also provides a separate basis for the conspiracy charge in Al-Nashiri’s case. Relying on it, Congress lawfully could criminalize violations of the laws of nations, including those that the United States had a preexisting international obligation to prevent. And at the time of the MCA’s passage, the United States had an obligation, under two multilateral treaties, to use “due diligence” in order to prevent terrorism. Congress, the prosecution says, has reasonable latitude to discharge this international duty, and properly elected to criminalize not only acts of terrorism themselves, but also to criminalize “conduct that directly facilitates such terrorism,” such as conspiracy. (That much is implied not only by the Define and Punish Clause, but also by the Necessary and Proper Clause found at Article I, Section 8, Clause 18 of the Constitution.) Finally, the Define and Punish Clause authorizes Congress to employ conspiracy as a rubric for criminalizing conduct that, under international law, may be punished according to the doctrine of “joint criminal enterprise,” or “JCE.” The international tribunals cited by the defense, which rejected conspiracy as a lawful charge, nevertheless accepted JCE as a “legitimate mode of individual criminal liability.” Doctrinally, JCE is different from conspiracy, but it neighbors it closely enough to permit Congress to act under the Define and Punish Clause, the government contends.
Finally the government insists that the crime of conspiracy, based on both historical practice and the 2009 MCA, precludes conviction for simply entering into a “plan.” Instead, the statute “enables the just trial and punishment of individuals who join with others having a criminal intent and then overtly act in furtherance of their agreement.” The defense’s legal attack against the international legal status of unadorned conspiracy – entering into a shared plan to do something criminal, but nothing more – is thus irrelevant. The current commission system permits conviction for conspiracy only if the defendant has (among other things) committed one or more overt acts. This guards against unfair convictions of those who merely plan or agree.