In this special episode of the Lawfare Podcast, Military Commission Chief Prosecutor Brigadier General Mark Martins discusses his decision to recommend dropping conspiracy charges against Khalid Sheikh Mohammed and the other 9/11 defendants. Martins announced yesterday that in light of the Hamdan II decision---in which the D.C. Circuit held that material support for terrorism is not available as a charge before military commissions for conduct predating 2006---he had recommended to the Convening Authority that the standalone charge of conspiracy be dropped from the 9/11 case. The logic of Hamdan II, he concluded, precludes commission jurisdiction over conspiracy, as well as material support, so he would proceed with the other seven charges in the case was recommending the withdrawal of that one charge. Martins' decision was announced the same day as the Justice Department announced that it would continue to argue in the Al Bahlul case that conspiracy is a war crime triable by commission and that Hamdan II is wrongly decided.
Charlie Savage of the New York Times has reported that both Martins' decision and the new Justice Department brief followed a significant interagency dispute over how to respond to Hamdan II and that the Justice Department's decision followed Attorney General Eric Holder's overruling of Solicitor General Donald Verrilli Jr.
General Martins joined me by phone this morning to discuss his decision and the implications of Hamdan II for the future of military commissions more generally. There were, of course, some issues he couldn't address in our discussion---or could address only glancingly. But the discussion sheds a lot of new light on the prosecutor's thinking after Hamdan II.