Peter Margulies of Roger Williams School of Law writes in with the following comments on Hamdan II–following up on his post immediately after the decision:
Even if one agrees with the Hamdan II panel that material support isn’t a violation of the law of nations—a position I critiqued in a recent post—the future of conspiracy charges in military commissions may be brighter. (See Jack’s post for more discussion of conspiracy, including caveats from Ben and Steve.) True, there are significant problems with conspiracy, as Kevin Jon Heller has posted, either as a mode of liability requiring a completed crime (the view in France and other civil law countries) or as a separate offense requiring only an agreement and some overt act furthering the agreement (the view under ordinary U.S. criminal law). Conspiracy is a plausible mode of liability in military commission cases, including the pending appeal by Osama bin Laden’s propagandist, Ali Hamza al Bahlul. However, international law and practice dim the prospects for charging conspiracy as a separate and independent offense.
Applying the Hamdan II analysis, conspiracy’s main edge over material support is its pedigree in international treaties, case law, and commentary. The lack of this pedigree was fatal to material support in Judge Kavanaugh’s Hamdan II opinion. Conspiracy’s lineage is more substantial.
First consider the pedigree of conspiracy as a mode of liability. Analysis begins with the widely respected 1996 International Law Commission (ILC) Draft Code of Crimes Against Peace and Security of Mankind. Article 2(e) of the Draft Code prohibits “planning or conspiring” to engage in war crimes, such as targeting civilians, that “in fact occur.” The ILC Draft Code’s standing provides some evidence of conspiracy’s acceptance, of the kind that the Hamdan II panel found lacking in the case of material support. However, conspiracy as mode of liability encounters problems elsewhere in the checklist that Judge Kavanaugh outlined in his opinion for the court. As explained below regarding conspiracy as a separate offense, the London Charter governing the Nuremberg tribunals expressly provided for conspiracy, and the Nuremberg tribunals permitted such charges, albeit in a limited manner. The statutes of more recent tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), are more restrictive. They do not include conspiracy as a mode of liability, although they do allow charging conspiracy to commit genocide (and genocide only) as a separate offense. Whether this is an insurmountable obstacle depends on how one reads Judge Kavanaugh’s opinion.
If one reads the checklist of authority in the opinion as conjunctive, conspiracy as mode of liability is a goner. On this view, the failure to include conspiracy as a mode of liability in the statutes of the ICTY and other recent tribunals would be fatal. If we can’t check the “recent tribunal” box, conspiracy simply lacks the international support required by the Hamdan II panel. However, one can also read Judge Kavanaugh’s discussion as a more flexible guide to the range of authority one would expect to see to justify military commission jurisdiction. On this more flexible view, the ILC’s endorsement of conspiracy would still be meaningful, along with conspiracy’s inclusion in the London Charter of the Nuremberg tribunals.
Given this pedigree, there also might be limited room for the kind of analogical reasoning that Judge Kavanaugh rejected in the case of material support. As Cornell’s Jens David Ohlin mentions in an important recent article, conspiracy as a mode of liability shares many attributes with another mode of liability involving concerted activity, Joint Criminal Enterprise (JCE), which is included in the statutes of recent tribunals and figures heavily in the case law. For example, Article 25(3)(d) of the Rome Statute of the International Criminal Court permits the conviction of an person who “contributes to the commission… of… a crime by a group of persons acting with a common purpose.” This pairing of joint intention with action is very close to conspiracy – close enough that no individual charged with the latter as a mode of liability can claim lack of notice. (For more on this point, see Ohlin’s recent post on his excellent blog, Lieber Code.)
Let’s consider how this plays out in the case of bin Laden’s propagandist, al Bahlul. Al Bahlul was convicted of both material support and conspiracy under the Military Commissions Act of 2006, which authorizes conspiracy as both a mode of liability and a separate offense. Al Bahlul, as an aide to bin Laden, was obviously below bin Laden’s pay grade, and it’s unclear whether he had advance, specific knowledge of the 9/11 attacks. However, he clearly contributed to the attacks before and after the fact. Evidence includes al Bahlul’s closeness to the al Qaeda leader, knowledge of earlier attacks on civilians such as the East Africa embassy bombings, admitted administration of the bayat or loyalty oath to two of the 9/11 hijackers including ringleader Mohammad Atta, and acknowledgment that after the attacks he distributed his two protégés’ martyr’s wills justifying their role. Al Bahlul’s involvement meets the requirements for JCE, and should therefore also fit under the rubric of conspiracy as a mode of liability.
The viability of conspiracy to commit war crimes as a separate offence is a tougher question. Here, too, conspiracy crosses Judge Kavanaugh’s first threshold, since a range of treaties mention it. For example, Article 6 of the London Charter that governed the International Military Tribunal (IMT) at Nuremberg permitted charges of “conspiracy for the accomplishment of” crimes against peace. These crimes included aggressive war and war in violation of treaties. However, the specific definitions of war crimes and crimes against humanity, which followed the definition of crimes against peace in the Charter, did not include conspiracy language. When Justice Robert Jackson, the head Nuremberg prosecutor, submitted indictments that also charged conspiracy to commit war crimes, the IMT swatted away Jackson’s attempt, ruling that it lacked jurisdiction.
Current treaties, statutes, and tribunals track this pattern. The Genocide Convention makes conspiracy a stand-alone offence. Because of the Convention’s inclusion of conspiracy, the statutes of tribunals such as the ICTY and the International Criminal Tribunal for Rwanda (ICTR) also permit charging conspiracy to commit genocide as a stand-alone crime. However, as Cornell’s Ohlin notes, these tribunals have repeatedly expressed skepticism about conspiracy, perhaps because of long-standing worries in civil law systems about the vagueness such charges might yield. Moreover, no treaty permits charging conspiracy to commit war crimes, such as targeting civilians, as an independent offence. The Military Commissions Act of 2006 is thus an outlier in this regard.
One can argue that the inclusion of conspiracy for genocide but not war crimes is a function of pragmatism, not principle. Genocide may be a crime of unique dimensions, but that does not justify rejecting the added deterrence that stand-alone conspiracy charges might yield for other serious crimes, such as mass killing of civilians that falls just short of genocide. However, the argument that international law should treat war crimes and genocide equally echoes the natural law concepts that dominated international law until the nineteenth century. The first third of the century saw the eclipse of “naturalist” principles in international law and the ascendancy of positivism—what the law is, not what it should be. Moreover, the failure to include conspiracy to commit war crimes as a separate offence in treaties and case law raises the concerns about retroactive application and the Ex Post Facto Clause that Judge Kavanaugh stressed in Hamdan II. If a trained lawyer assessing the relevant authorities would not anticipate this charge, a lay defendant would not either. That makes lack of notice a problem of constitutional scale.
Is evidence from U.S. history enough to buck the positivist trend or provide the notice otherwise lacking? Not really. First, as Judge Kavanaugh rightly noted, under the Constitution’s Define and Punish Clause, there’s no distinct “U.S. common law of war” that trumps international law. Second, the United States Supreme Court endorsed the positivist trend in The Antelope, in which Chief Justice Marshall explained a little too matter of factly for modern sensibilities that slavery was not yet a violation of customary international law, although he readily acknowledged that it might become one. Third, it’s true that the United States has a history of filing conspiracy charges in military commissions, as plotters of Lincoln’s assassination discovered. However, as Justice Stevens noted in Hamdan I, most conspiracy charges entailed completed crimes. This history suggests the United States, like Europe, did not develop what Madison in Federalist No. 37 called a “course of practice” in charging conspiracy to commit war crimes as an independent offence.
Viewed in this light, conspiracy after Hamdan II looks like a mixed decision. Thumbs down on conspiracy as a separate offence. A cautious thumbs-up for conspiracy as a mode of liability. This is not a stellar scorecard, but it is better than the reception that material support got from Judge Kavanaugh and the Hamdan II panel.