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On the Availability of Material Support and Conspiracy Charges in Civilian Court for pre-2006 Conduct

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Tuesday, January 8, 2013 at 4:56 PM

In response to Charlie Savage’s piece today concerning an interagency debate over whether to continue to argue for the viability of conspiracy and material support charges in the military commission system (originally posted-on by me here), Andrew Rosenthal  (editor of the N.Y. Times editorial page) has an interesting post up developing the argument that this is a reason to prefer civilian over military commission prosecution.  He rests his case, in part, on a quote from me that appears in Charlie’s article.  Here’s that quote:

“In the civilian court system we have powerful tools for charging people in preventative circumstances who are not directly linked to an attack, and they are the charges of conspiracy and material support,” Professor Chesney said. “The military commissions system is supposed to be a still more robust terrorism prosecution system, but ironically there has always been a question about whether it can legitimately charge those two key crimes.”

What I did not say in that quote, but which John Bellinger  and I (see especially this one, including the update at the top of the post) ave blogged about in connection with Hamdan II in the past, is that there is a problem in the civilian court system with using 18 USC 2339B for extraterritorial conduct that occurred pre-2004 (for 2339B).   On the other hand, the older material support statute-18 USC 2339A–aattaches to extraterritorial conduct from November 2001 onward, and there is no similar concern with respect to various conspiracy statutes that might come into play.  In any event, the brevity of the quote doesn’t reflect this nuance, and I thought it worth underlining once more.

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