The Guantánamo military commissions yesterday released---after a security review---a pair of important filings by the Office of the Chief Prosecutor (OCP), regarding the ongoing controversy over the conspiracy charges against the five 9/11 defendants. (For background, see our prior coverage here, here, and here; and Chief Prosecutor Brig. Gen. Mark Martins's podcast with Ben on the decision to recommend to the Convening Authority (CA) that the conspiracy charges be dropped.)
The two key documents are AE107A (parts 1, 2, and a brief supplement), the OCP's response to the defense motion to dismiss for lack of jurisdiction (itself numbered AE107); and AE120 (parts 1, 2, and 3), the OCP's motion to make minor changes to the charge sheet (part 1, pp. 1–15). AE107A includes the OCP's January 16 motion (part 1, pp. 1–24) laying out the legal issues surrounding the conspiracy charges and fully articulating the OCP's litigating position, as well as the OCP's unsuccessful January 6 recommendation (part 2, pp. 60–64) to the CA to drop conspiracy as a stand-alone charge. This post summarizes, and then briefly discusses, AE107A and AE120.
AE107A makes two important moves. First, it formally acquiesces to the defense's motion to dismiss conspiracy as a stand-alone charge, in light of the D.C. Circuit's decison in Hamdan II. There, the Court of Appeals held that the Military Commissions Act of 2006 does not confer jurisdiction over pre-2006 conduct that was not then considered criminal under international law. (The scrupulous prosecutors are careful to emphasize though, and at some length, that the military commission unquestionably retains jurisdiction over charges other than conspiracy (pp. 8–22).) Second, AE107A also seeks to preserve conspiracy, so far as it can be used to establish vicarious liability for other charged offenses (p. 1 n.1):
The government would oppose the defense motion to dismiss Charge I [stand-alone conspiracy] if the Commission considers dismissal to require striking the language of Charge I entirely from the charge sheet. As explained in AE-120, the government will be required to prove an agreement between co-conspirators, as well as overt acts committed by each accused, to convict the accused under a co-conspirator theory of liability for substantive offenses. The language in Charge I alleging an agreement, and the overt acts in furtherance therof, should therefore remain on the charge sheet under a different heading in order to note, and keep the accused on notice of, the co-conspirator theory of liability. See Attachment B. The removal of conspiracy as a separate, stand-alone offense grants the accused all the relief they are entitled to under Hamdan II, because they would no longer be subject to a conviction or additional punishment from the conspiracy charge.
This brings us to AE120 --- which, as the above makes clear, asks the commission to make a particular edit to the charging documents, should it ultimately grant the motion to dismiss. In that event, the prosecution says, the court should also "record the dismissal of conspiracy as a separate, stand-alone offense, and preserve the pre-existing notice of the government’s co-conspirator theory of liability resting upon the accuseds’ alleged participation in a common plan to commit the remaining seven offenses" (pp. 1–2). Here, the OCP is essentially seeking to apply what federal criminal law knows as Pinkerton liability. Under that doctrine, a defendant may be held liable for any (usually foreseeable) actions committed by co-conspirators in furtherance of a conspiracy, without any further requirement of intent. And, AE120 goes on to argue, various sources of law support Pinkerton's application in the 9/11 case: the domestic law authorizing military commissions, specifically 10 U.S.C. § 950q(1); court cases upholding military commission verdicts, notably Quirin; and international law, in the form of the "joint criminal enterprise" doctrine (pp. 7–14). Why go to such lengths to preserve conspiracy in the charge sheet, if only as a possible mode of liability? Simple: in order to satisfy the defendants' notice rights. AE120 makes clear, however, that the OCP may still seek to establish liability on other grounds---such as aiding or abetting (p. 2 n.1).
A few observations.
First, while the CA can (and did) decline to withdraw a charge that the OCP wishes to drop, the CA cannot order the OCP to object to the defense's motion to dismiss. Indeed, it can't order the OCP to do much of anything: by law, military commissions are structured so as to give the OCP substantial independence, as far as trial decision-making is concerned. In the words of both the 2006 and 2009 MCA, "No person may attempt to coerce or, by any unauthorized means, influence . . . the exercise of professional judgment by trial counsel." Morris Davis, a former military commissions chief prosecutor, pushed for this language to be included in the MCA. "I asked to have [the provision] included," he said, "to stop them [the CA] from dictating to me how I had to do my job." Thus, even if Judge Pohl agrees with the CA, and rejects the defense's motion to dismiss, the OCP could still pursue other avenues for relief---for example, by seeking an instruction that would bar members from convicting the accused of stand-alone conspiracy; or, alternatively, by not seeking to impose additional punishment upon conviction of that charge.
Some, like Yale Law Professor Eugene Fidell, think disagreements like the one between the CA and OCP imply a flaw in the military commissions' authority structure: "The fact that one chief prosecutor after another has had to cross swords with the appointing/convening authority is disturbing and suggests to me that there is something basically unsound in the overall architecture of the system. . . . Too many cooks are spoiling this broth." But others, like Davis, argue instead that CA-OCP disputes reflect positively on the military tribunals: "If you try to put a positive spin on it, it does show ind[e]pendence---that this isn't a rigged game." For what it's worth, I'm with Davis. To the (albeit only partial) extent that the CA is modeled on the grand jury, it makes sense that we would give military prosecutors the same discretion civilian ones have---to not to push charges that the grand jury had approved but that might no longer be legally viable.
Second, while the OCP's withdrawal recommendation was a judgment call based on the OCP's reading of Hamdan II and, especially, the judicial tea leaves of a potential future Supreme Court opinion, the OCP was likely required at least to flag the issue for the CA. Rule for Military Commission 502(d)(6) Discussion (B) notes that "[t]rial counsel should . . . bring to the attention of the convening authority any case in which trial counsel finds trial inadvisable for lack of evidence or other reasons." Hamdan II, which the government has conceded makes pre-2006 conspiracy untriable in military commissions, certainly qualifies as such a reason.
Third, no matter what happens with the conspiracy charges, the other seven stand-alone counts---(1) attacking civilians, (2) attacking civilian objects, (3) murder in violation of the law of war, (4) destruction of property in violation of the law of war, (5) hijacking or hazarding a vessel or aircraft, (6) terrorism, and (7) causing serious bodily injury---present what Ben and Bobby have previously called "an embarrassment of charging riches." This is a major reason why the OCP's maneuver is such a shrewd one, at least in terms of protecting the military commission's reputation and legitimacy. Because there are so many other, readily established grounds for conviction, dropping the conspiracy charge doesn't increase the risk that the commission will find the defendants innocent (an outcome which would expose the commission to criticism from the Right). This type of play-it-safe, lowest-common-denominator strategy on the part of the OCP is hardly unprecedented. As prosecutors note in the AE120 motion (pp. 9–10), during one of Nuremberg trials (of some mid-level Nazis) the court had ruled that it lacked jurisdiction to try the defendants for stand-alone conspiracy---but nevertheless endorsed conspiracy as a theory of vicarious liability. And, because the OCP's strategy ensures that a high-profile conspiracy conviction won't be overturned on appeal (see, e.g., the D.C. Circuit's vacatingof Al-Bahlul's conviction earlier today), it accounts for a would-be criticism from the Left---that commissions operate outside the law when left to their own devices. More generally, the OCP's move likely reduces the number of issues up for possible Article III review---where commissions always run the risk of being slapped around for one reason or another.
Which is to say: all of this inside baseball is perfectly consistent with (and indeed, furthers) Brig. Gen. Martins's oft-repeated goal of establishing the legitimacy of military commissions, both at home and abroad.