Remember the Chief Prosecutor’s tactical recommendation to pull standalone conspiracy charges in the 9/11 case—in light of the D.C. Circuit’s analysis in Hamdan II, and the strong likelihood that the same court (or the Supreme Court) would follow Hamdan II, and invalidate conspiracy as a commission offense with respect to pre-2006 conduct?
Well, the military commissions’ Convening Authority considered—and, contrary to expectations, today rejected—the prosecutor’s recommendation. From the DoD release announcing the decision:
Convening Authority for Military Commissions Declines to Withdraw Conspiracy Charge Against Alleged 9/11 Co-Conspirators Pending Appellate Ruling
The Department of Defense announced today that the convening authority for military commissions declined to withdraw and dismiss the conspiracy charge in the case of United States v. Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi, as requested by the chief prosecutor, Brig. Gen. Mark Martins. In declining to withdraw the conspiracy charge, the convening authority noted that dismissal at this time would be premature, as the viability of conspiracy as a chargeable offense in trials by military commission is still pending appellate review.
In addition to conspiracy, the accused are also charged with attacking civilians, attacking civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking aircraft, intentionally causing serious bodily injury, and terrorism.
Last October, the U.S. Court of Appeals for the District of Columbia Circuit overturned the 2008 military commission conviction of Salim Ahmed Hamdan on charges of providing material support for terrorism. The appellate court ruled that the material support charge — involving actions by Hamdan as Usama bin Laden’s driver and bodyguard prior to November 2001 — was not “an international-law war crime” that Congress had enforced “at the time Hamdan engaged in the relevant conduct.” Hamdan, whose sentence to confinement has been completed, was returned to his home country of Yemen before the decision overturning his conviction was announced.
Based on the reasoning of the court in that case, chief prosecutor Brig. Gen. Mark Martins determined that there was substantial uncertainty about whether the courts would reach a similar conclusion as to the permissibility of charging conspiracy as a stand-alone offense involving pre-2006 conduct. He therefore recommended its withdrawal and dismissal from the case U.S. v. Muhammad, et al, in a memorandum sent to the convening authority.
The convening authority, who is responsible for determining whether specific charges should be referred to trial by military commission, declined to withdraw the charge of conspiracy, noting that Congress included conspiracy as a chargeable offense in the Military Commissions Acts of 2006 and 2009, and that two Presidents had signed those Acts into law. The convening authority also noted that the Department of Justice maintains that conspiracy is a cognizable offense in trials by military commission in the case Al Bahlul v. United States, which is currently pending appeal. The convening authority informed the chief prosecutor that, because the issue has not been finally decided, he believed it would be premature to withdraw and dismiss the conspiracy charge in the case U.S. v. Muhammad, et al, at this time.
The charges are only allegations that the five accused have committed offenses punishable under the Military Commissions Act of 2009 and the law of war, and each accused is presumed innocent unless proven guilty beyond a reasonable doubt. Pursuant to the reforms in that Act, each accused has been provided defense counsel with specialized knowledge and experience in death penalty cases.