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Chief Prosecutor Statement on this Week’s Hearing in the 9/11 Case

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Monday, January 28, 2013 at 3:26 PM

You’ll find a copy here.

The Chief Prosecutor’s statement naturally overviews the week’s proceedings; one portion, however, addresses an issue not formally included on the docket but likely of interest to Lawfare readers:

Conspiracy as a Separate, Stand-Alone Offense 

The accused in this case have filed a motion to dismiss all charges (Appellate Exhibit  107).  The most current scheduling order indicates that this is, at the defense’s request, no longer  due to be heard in this or the February session and will likely be heard during the session in April.  Still, the frequency of questions on this topic makes it appropriate to remark on its status and procedural posture.  In response to the defense motion, the government strongly opposed the dismissal of seven of the eight charges, which include the offenses of attacking civilians, attacking civilian objects, murder in violation of the law of war, destroying property in violation of the law of war, hijacking or hazarding an aircraft, terrorism, and intentionally inflicting serious bodily injury.  All seven of these offenses are well-established violations of the international law of war and are among the gravest forms of crime recognized and condemned by all civilized peoples.  Four of the offenses include a maximum punishment of the death penalty.  Because they violate the law of war, these seven offenses may be tried by military commission, a conclusion that is reinforced by the analysis of the United States Court of Appeals for the District of Columbia Circuit in its decision last October in the Hamdan II case.

The government acknowledges, however, that the conspiracy charge for pre-2006 conduct fails under the Hamdan II analysis, and in fact Friday’s decision by the Court of Appeals in the Bahlul case underscores that fact.  The Justice Department has informed the Court of its intention to preserve its position for further review of the Bahlul decision.  Still, to avoid introducing additional uncertainty and appellate risk into this capital case, and to ensure that the case continues to proceed without unnecessary delay, the government did not oppose the defense motion to dismiss conspiracy as a separate, stand-alone offense, so long as the Commission agrees to approve minor conforming changes to the charge sheet.  These proposed changes to the charge sheet preserve the existing co-conspirator theory of liability for the remaining seven substantive offenses in a manner that has been upheld in military law, federal law, and international law under the doctrine of “joint criminal enterprise.”  The proposed changes are all described and explained in a separate motion filed by the government (Appellate Exhibit 120).  In order to ensure the issue was ripe for the Commission, I had previously communicated to the Convening Authority—in accordance with my duty under the law—why I determined that continued prosecution of conspiracy as a stand-alone offense was inadvisable and how I would exercise my authorities to eliminate it as a source of uncertainty and distraction.  My memorandum recommending that the Convening Authority join me in and thus simplify the effort, and the Convening Authority’s response declining to do so at this time, are available as attachments to Appellate Exhibit 107A and 107A (Gov Supp).  

I will not comment on the media coverage of internal deliberations between my office and officials in the Department of Justice and Department of Defense over how to proceed on the conspiracy charge after Hamdan II.  But I reject the premise that government officers with distinct duties should be expected to move in lockstep on difficult issues, or that the failure to move in lockstep somehow indicates that the military commission system is unfair.  Every official—whether the Attorney General, the Convening Authority, or the Chief Prosecutor—has a unique, statutorily-defined role in this institution, and I would submit that a vigorous fulfillment of those different roles serves the public’s interest. The fact that officials within this system make independent decisions within their purview, if anything, bolsters rather than undermines confidence in the military commission system.