Well, the prosecution and defense don’t agree about much--but they both love Lawfare.
Judge Pohl turns next to defense motion AE 048, which argues that conspiracy is not a valid charge before a commission, as it is not a war crime. He begins by noting that the court has heard arguments in prior motions about common systemic issues, so he doesn’t need to hear repetitive argument on those common issues. He asks counsel to focus on the features of this motion that are unique.
Paradis argues the motion for the defense, noting at the outset that conspiracy is enumerated in the MCA, and by the MCA’s terms and implementing regulations, it applies broadly to circumstances in which it is appropriate to bring charges in some commissions. The question, however, is whether the charge of conspiracy is available in this commission. The answer, he says, is no, because this is a law-of-war commission. And to be charged in such a commission, one must be a war criminal. To be a war criminal, one must commit a war crime. And the government must make a substantial showing that a given charge is a war crime. Conspiracy, however, has been emphatically and consistently rejected as a war crime in international tribunals from at least World War II. It was rejected by the Yugoslavia and Rwanda tribunals. And it was rejected most importantly under Coalition Provision Authority tribunal in Iraq that tried the Baathists, including Saddam Hussein. Paradis says he struggles to think of a more evil conspiracy than Saddam Hussein's to commit war crimes, but the charge was not available in that court, which of course did not prevent Saddam’s trial for real war crimes.
The government’s position, Paradis says, is that because conspiracy is in the Act, it is therefore chargeable. This is wrong for two reasons. First, this commission must look to see whether the charge of conspiracy existed as a war crime at the time the acts in question were committed. Yet when we convened the Baathist tribunal in 2002 and 2003, we did not include conspiracy as a war crime. Second, there is the account of the Supreme Court plurality in Justice Stevens’s opinion in Hamdan.
Asks Judge Pohl: is that good historical data? We think it is, Paradis say. Paradis says that he understands that the government objects to Stevens’s history, yet he notes with a trace of derision that the government’s authority for it historical objections to the plurality opinion is a blog. To be precise, the authority is this blog--to wit this post by Haridimos Thravalos. Paradis declares that he loves Lawfare (thank you, sir!) and that he reads it every day (a comment for which we did not pay him). But faced with a choice of Justice Stevens or a blog entry, he’s going with Justice Stevens.
Making a crime out of what was not a crime and applying it retroactively is a violation of the Ex Post Facto clause, he says. It says not only what the law will be but what the law has been. Judge Pohl asks whether that logic applies to the MCA as a whole. But Paradis says there’s a difference between making a crime out of something that wasn’t a crime and simply creating a venue for the prosecution of existing crimes. So it’s fine for Congress to create commissions to try acts that were already war crimes, but it can’t create new war crimes to try in commissions retroactively. I would simply urge the commission to rely on the law as it stood in 2000 and 2002 when the acts happened, he says, and in 2006, when Congress amended UCMJ to include conspiracy as triable prospectively.
Judge Pohl asks whether it gives Paradis any pause that conspiracy is different under the MCA--that it requires an overt act by the accused. Paradis says that changes nothing, and they have a back-and-forth on this point.
Judge Pohl notes that Paradis keeps coming back to the claim that the Convening Authority didn’t have the authority to refer this charge. What does he mean by this?
Paradis argues that there are four types of military tribunals--courts martial, and then three types of commission, including the law-of-war commissions at issue here. These, he says, are utterly different from the others. They can operate in parallel with federal courts only because their jurisdiction is very narrowly circumscribed to offenses against the law of war. If there were no concurrent jurisdiction, then they could hear a far wider array of charges.
But, Judge Pohl points out, the statute includes “other offenses chargeable by commission.” So does it have to be a law of war violation to be triable by commision given that language? Reponds Paradis: To be triable by a law of war commission? Yes. To be triable by other types of commissions? No.
Judge Pohl clarifies: But not this type of commission. Is that your argument?
That is exactly our argument, Paradis says. He concludes by urging the court to go with precedent and reject the conspiracy charge.
Chief Prosecutor Mark Martins opens his argument by saying that the motion must fail because we have case law at the CMCR directly on point in Bahlul. Moreover, what you just quoted from the statute, he says to Judge Pohl, shows a great mistaken premise in the defense motion: that the law of war is the limit of the commission’s jurisdiction. In fact, Congress is codifying something else, something broader. Spying and aiding the enemy, he says, are the classic example. These are not law-of-war violation, but they are traditionally triable by commission.
When Congress passed the MCA, it referred to crimes triable by military commission. Congress was here using all of its war powers, including the Necessary and Proper power to carry into execution its other powers. It’s those war powers that give it this authority. The cases everyone must cite about commissions are cases that lacked a congressional enactment that codified these offenses, that gave the offenses rigor, that made it harder to establish the crimes, that created a heightened scienter requirement, that made an overt act something the accused had to do, that crystallized elements of an offense. The MCA did all of these things.
Judge Pohl asks whether he takes issue with the Supreme Court plurality in Hamdan that conspiracy is not a traditional law of war violation. Martins says he does.
Although the Thravalos article did appear in a blog, his Lawfare post is no ordinary blog post--as even the defense, Martins says, would acknowledge. It came with many pages of primary source documents. And it was directly on point. It involved a pure law-of-war commission. This was not military government. It was not martial law. And it involved an inchoate conspiracy conviction for violating the law of war by burning steamboats. It is exactly the precedent whose existence the Stevens opinion denies. It really invalidates about three pages of Stevens’s opinion, Martins says. I invite you to look at it, he says.
Does it have to be a law of war violation to be triable, or is a non-war-crime saved by the statutory language, Judge Pohl asks. In other words, if we remove the law-of-war basis, can this charge stand on the “other offenses” language?
Martins responds that he would like to think about that more, but that he thinks the charge could survive. In any event, this is a law of war violation, he says. You get arguments about that from international law scholars. But it’s good to actually consider the Iraqi tribunal. I know something about that tribunal, says Martins, who served in Iraq. It’s a civil law system. So there was no jury. They don’t need a conspiracy charge to get to conduct, as the Iraqis say, “to the left of boom”--that is, very inchoate. Every system has a way of getting to criminal conduct to the left of boom. In our system, conspiracy is the way we get to conduct to the left of boom. Congress figured out how to provide for effective sanctions in our system by using conspiracy. Martins emphasizes that planning isn’t what’s outlawed. Congress ensured that persons would be held accountable for conduct, not just plans. Martins concludes by emphasizing again that we are in a different world since 2006, when Congress used all of its powers to define this offense.
Paradis rises to rebut. First, he says, the government’s assertion that conspiracy is part of the American common law of war is a confusing argument. It was not briefed in the CMCR in Bahlul. It’s a new theory, on which the government’s argument is premised--a penumbral theory, that the Define and Punish clause is not the sole grounds and that it can rely on the common law of war too. It can therefore use hidebound incidents from Alabama to establish what a Saudi in the UAE would have known about war crimes in 2000.
One victory Paradis says he won in the CMCR was that the court rejected a broad theory of congressional power as the basis for teh MCA. The CMCR says that explicitly, that it won’t look at broad congressional war powers and the Nececssary and Proper clause. The Define and Punish Clause is the source of congressional authority to create military commissions--and, therefore, the offense must be an offense under the laws of war. To talk about the American law of war is as much of an anomaly as to talk of the “American law of space” or the “American law of the sea.” The U.S. greatly respected the laws of war historically, and it's international law.
Granted, Judge Pohl says, conspiracy is an Anglo-American legal concept. But there are similar offenses under civil systems. Is there some other charge that punishes group behavior? Yes, Paradis agrees. Then isn’t it okay to punish a group, rather than individual, regardless of whatever it is called in Italy, France, or Iraq? Aren’t we just talking about elements?
No, Paradis says. Conspiracy is foreign to the laws of war, but it’s not foreign to international law. There’s conspiracy to commit genocide; conspiracy to commit genocide is an offense in Iraq. The Iraqi tribunal followed the ICTY and our military commission precedents under General Eisenhower in Germany, and they rejected conspiracy as standalone offense.
Judge Pohl pushes: So it's not really conspiracy you have difficulty with. Your objection is not that it is a standalone offense, but that this standalone offense is not cognizable under the laws of war. Paradis says that the standalone nature of conspiracy to commit war crimes is objectionable. It is that which was rejected at Nuremberg and also by army commissions that were convened by Eisenhower to prosecute violations of the laws of war at Dachau. So your view, Judge Pohl clarifies, is that under international law, you can agree to commit a law of war violation using explosives, you can commit acts in furtherance of the agreement, but until they commit an offense, there is no law of war violation? Correct, says Paradis. You have to blow something up? Absolutely, because war crimes are the gravest type of crime. War criminal is the greatest term of opprobrium out there.
Martins offers a few brief points to wrap up. The Lincoln conspirators: Convicted of conspiracy. The Quirin case: conspiracy was charged. He ticks off a few other commission cases in which conspiracy was charged. These crimes are triable by military commissions, he says. The courts should show appropriate deference to Congress, when it identifies a principle that is not inconsistent with national interest and international justice. That was Congress’s role here. Martins submits that whether conspiracy is punishable by commission is a question on which Congress has an important role to play. And it played it here.
He talks further about some of the remarkable history that Thravalos dug up and how it undermines the Stevens plurality opinion. And he concludes by noting that the conduct alleged in this case was certainly not innocent when undertaken. Congress, he says, was merely codifying in 2006 what everyone knew to be an offense.
Judge Pohl declares that an opinion will issue in due course.