The government has just posted a memorandum from March 12, 1945 in the Bahlul docket concerning the question of whether participation in a conspiracy to commit an offense against the law of war is punishable in a military commission. The letter from government counsel John F. De Pue accompanying the 1945 memorandum explains that it was just discovered in the St. Louis branch of the National Archives. He explains the significance of the memorandum:
This letter is submitted under Fed. R. App. P. 28(j) and D.C. Circuit Rule 28(f) to invite the Court’s attention to a March 12, 1945 letter written by then-Assistant Attorney General Tom Clark to The Judge Advocate General, and an attached memorandum of law. The documents address the question whether participation in a conspiracy to commit an offense against the law of war is, itself, a punishable offense in a proceeding before a military commission. The Assistant Attorney General’s memorandum concludes that it is “well established that a conspiracy to commit an offense against the laws of war is itself an offense cognizable by a commission administering military justice.” These documents provide further support for the proposition that, as a historical matter, conspiracy is an offense triable by military commission under our nation’s common law of war. See Gov’t Br. at 43-45 (discussing later habeas case upholding prosecution of Colepaugh and Gimpel); Gov’t Supplemental Authorities, Vol. I, at 128 (Colepaugh materials). The attached letter and accompanying memorandum of law relating to the Colepaugh and Gimpel prosecution were recently located in the St. Louis, Missouri branch of the National Archives, which has responsibility for maintaining old military records, including the records of courts-martial and military commission proceedings. A copy of this correspondence will be furnished to counsel for petitioner via the ecf filing system.