Raff already flagged yesterday’s filing of an amicus brief in support of the government in the Al Bahlul military commission appeal before the en banc D.C. Circuit by “former government officials, former military lawyers, and scholars of national security law,” a group that includes Ben, Ken, and two of my casebook co-authors–among others. At the heart of this brief is a fairly simple argument: Although conspiracy as a standalone offense is not an international war crime, the D.C. Circuit should nevertheless affirm Bahlul’s military commission conviction for conspiracy because the facts, and the jury’s specific findings, would have supported a conviction for an offense that is recognized under international law–Bahlul’s participation in a “joint criminal enterprise” (JCE) to commit a completed war crime, to wit, the 9/11 attacks. Thus, the argument goes, even if international law doesn’t recognize conspiracy as a standalone offense (which the brief correctly concedes), it does recognize conspiracy as a mode of liability (albeit called “JCE”) for an otherwise completed war crime. And insofar as the 9/11 attacks were a completed war crime, those who participated in the “common plan” from which those attacks arose can be held liable under a JCE theory.
Unfortunately, this argument suffers from at least two separate but equally fundamental flaws, both of which Kevin Heller has already flagged over at Opinio Juris, but upon which I elaborate below the fold: First, whether or not Bahlul could have been so charged before the commission, he wasn’t. And the brief, perhaps unsurprisingly, offers no precedent–none–for the proposition that a conviction can be affirmed on appeal based upon an entirely different charge–and theory of liability–than that which was actually submitted at trial. Second, and related, even if such a strange proposition could ever be true, it would presumably require that every single element of the valid-but-uncharged offense have been proven at trial, even if it was not charged as such (akin to the “modified categorical approach” under Taylor v. United States and Shepard v. United States). But the jury in Bahlul’s case was never asked to find–and never found–that Bahlul’s involvement played any part in any completed war crime that actually took place, i.e., that his administration of bayat was a cog in the wheel leading to the 9/11 attacks. And although the brief dismisses this “error” as “harmless,” it is anything but on the brief’s own theory.
I. Affirming a Conviction Based upon a Different Crime
It’s a common principle of civil litigation that appellate courts can affirm decisions below based upon any ground supported by the record. And so one way to understand the “former government officials’” amicus brief is as simply arguing for an extension of that principle into the military commission context. In his first post at Opinio Juris, Kevin explains quite persuasively how this argument is based on a complete misreading of Justice Stevens’ opinion for a plurality of the Supreme Court in Hamdan I.
But misreadings of Hamdan I aside, there are compelling constitutional reasons–and reasons based upon simple norms of fairness reflected in virtually all criminal law systems–why the “affirm-on-any-ground” approach is not available in the context of a criminal conviction. As Justice White explained for the Supreme Court in McCormick v. United States,
This Court has never held that the right to a jury trial is satisfied when an appellate court retries a case on appeal under different instructions and on a different theory than was ever presented to the jury. Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury.
Separate from the jury-trial right identified in McCormick, there is also the more fundamental due process problem described by Justice Black for a unanimous Court in Cole v. Arkansas:
No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. . . . It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.
At this point, perhaps some of the amici (though probably not all of them) might respond that these constitutional constraints are inapposite insofar as Bahlul is a non-citizen tried by a military commission outside the territorial United States–and so beyond the protections of either the Fifth or Sixth Amendments. But (1) that is not what the “former government officials’” amicus brief argues; and (2) in any event, it is not at all clear that none of the protections of the Fifth and Sixth Amendments apply to the military commissions–or that, even if they don’t, the MCA or the rules for the commissions would allow such a radical departure from established norms of criminal procedure.
But it is also worth emphasizing a separate point, which is the extent to which the principle described in Cole and McCormick is also tied to ex post facto concerns insofar as it goes to whether the defendant was reasonably on notice as to the charges against him, and had a reasonable opportunity to defend himself against those charges. Given that, it is likely both that these concerns apply at Guantanamo without regard to the Fifth and Sixth Amendments; and that they’re necessarily incorporated by the MCA, since Judge Kavanaugh held the MCA to codify ex post facto principles in Hamdan II. Simply put, it would seem anathema to basic principles of criminal justice to allow for a conviction to be affirmed based upon a nunc pro tunc resuscitation of a charge distinct from that which was actually pursued and proven at trial.
II. The Different Crime Was Not in Fact Found By the Jury in Bahlul’s Case
Perhaps tellingly, the amicus brief does not respond to the constitutional flaws identified above. Instead, its core argument is that Bahlul was on notice of the different theory insofar as the charge sheet against him identified overt acts giving rise to a completed war crime and a JCE theory of his culpability for that crime as part of the basis for Bahlul’s underlying conspiracy charge. Of course, McCormick already dealt with this argument in concluding that “[a]ppellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury.” But even if that wasn’t the case, Kevin’s second Opinio Juris post highlights the even more basic flaw in applying this argument to Bahlul’s case: “The amicus brief openly admits that ‘[t]he charge sheet contained an error, since it failed to allege a completed war crime’ (p. 5) and that ‘the instruction on conspiracy in the instant case was erroneous, because it permitted the members of the commission to find the defendant guilty of conspiracy based on mere agreement, without a completed crime.’”
In particular, the brief argues that for JCE culpability to attach, the government must prove, and the jury must find, that the defendant’s involvement was a “cog in the wheel of events leading up the result which in fact occurred.” There was no such finding here about whether al-Bahlul’s administration of bayat to two of the 9/11 hijackers was in fact such a “cog” that led to the 9/11 attacks.
The amicus brief dismisses these points as harmless, but they are anything but… The whole point of the Supreme Court’s post-Apprendi jurisprudence is that the key in criminal cases is what was actually found by the jury in determining a defendant’s guilt–and not what might reasonably have been inferred from vague statements in the government’s charging document. And although the Supreme Court has held that Apprendi error can be harmless, it is impossible to see how that could have been the case here since the facts not actually found by the jury are central to the alternative ground on which the brief argues that Bahlul’s conviction can be affirmed.
But even if this error was harmless, it underscores the far more fundamental problem with the brief insofar as it asks an appellate court to rewrite the record to find that a criminal defendant was convicted of a crime–and based upon facts–not actually submitted to the jury. Whether grounded in the Ex Post Facto Clause, the Fifth Amendment, the Sixth Amendment, the MCA, or basic principles of the rule of law, such an approach is clearly forbidden.
III. So Why File a Brief?
Given the obvious–and, in my view, fatal–flaws in this brief, it seems worth asking why a group of such luminaries would nevertheless file it. After all, the real gripe the brief appears to have is not with the D.C. Circuit’s analysis in Hamdan II (which is purportedly what’s at issue in the en banc proceedings in Al Bahlul), but with the charging decisions made by the Chief Prosecutor. On the brief’s theory, Bahlul’s could have been a far easier case had he just been charged and tried the right way–a little bit of testimony about his administering bayat to the hijackers, a smidgen of testimony about how that oath led to a proven war crime, and poof! As this brief suggests, that’s the very approach the government is pursuing in the 9/11 trial–dropping the standalone conspiracy charges in favor of JCE-like liability for the already-charged completed offenses. So perhaps the real objection here is that the same approach wasn’t pursued in Bahlul’s case.
But at a more basic level, if the goal of all of this litigation has been to resolve, one way or the other, whether military commissions can try the offenses of conspiracy and material support based upon pre-MCA conduct, nothing that the amicus brief argues will in any way advance that conversation. Even if it were accepted, all the brief would accomplish is to affirm Bahlul’s conviction based on the unique and peculiar facts of his case, without actually settling the more general ability of the commissions to try conspiracy or MST in other cases with different facts. Nor, as the 9/11 proceedings suggest, would the rejection of this argument preclude the government from pursuing the JCE-plus-completed-offense approach in current and future prosecutions.
IV. Whether–and Whither–JCE
Which leads finally to the merits question underlying this whole theory–whether JCE is as capacious and Pinkerton-like in its scope as the amicus brief would have readers believe. After all, this theory only works if the government could actually establish JCE liability for completed war crimes based upon the same evidence on which it has pursued standalone conspiracy charges. And even then, the government would have to explain how the MCA authorizes trials based upon JCE given that it doesn’t include JCE as a mode of liability in the relevant statutory provision.
But that’s a separate issue, and one that can be dealt with if and when it properly arises in one of these cases. If nothing else is clear about the Al Bahlul en banc proceedings, it should at least be beyond question that now is neither the proper time nor forum for that argument–if for not other reason than because that was not the theory on which Bahlul was charged or convicted at trial.