The New York Times has a news analysis piece by this morning the excellent Charlie Savage, which requires a moment's reflection. Charlie is about as good a reporter as there is out there on Lawfare-related matters, and he has broken most of the stories related to the internal machinations within the executive branch over the future of conspiracy and material support charges in military commissions. So it's with a lot of respect that I say that his story today on Brig. General Mark Martins's dispute with the Justice Department over conspiracy, at least in my opinion, is a bit of a misfire.
Charlie starts with Martins's glowing resume and sets him up as having been something of the Obama administration's legal golden boy---until now. The Charlie turns to the guts of his point:
But next week, when General Martins returns to public view at a pretrial hearing in the Sept. 11 case, he may appear to have gone rogue. He has engaged in an increasingly public dispute with the administration centered on an uncomfortable question he is refusing to drop: is it valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law?
General Martins’s standoff with the administration is writing a new chapter in a familiar narrative: since the 2001 terrorist attacks, military lawyers in the Judge Advocate General’s Corps have repeatedly clashed with politically appointed lawyers over the laws of war.
During George W. Bush’s administration, uniformed lawyers pushed back against civilian officials over the applicability of the Geneva Conventions in the war on terrorism, torture and protections for defendants in tribunals. Then as now, uniformed lawyers adopted rigid interpretations of the rules of warfare as constraining government policies, while civilian lawyers gravitated toward more flexible (or expedient) understandings.
The current dispute traces back to an appeals court ruling in October that vacated a tribunal’s verdict in 2008 against an Al Qaeda driver because his offense, “material support for terrorism,” was not a recognized international war crime at the time of his actions. The judges rejected the Justice Department’s argument that the charge was nevertheless valid under an American “common law of war” and because Congress had listed the crime as an offense for the tribunals in a 2006 statute.
The ruling raised the question of what to do about other cases with the same defect, including the appeal of a convicted Al Qaeda propagandist whose charges included “conspiracy,” which is also not an international war crime but was sometimes charged by tribunals in American history, including in cases from World War II and the Civil War.
General Martins pushed to abandon the propagandist’s conviction and scale back the charges that are triable in a military commission, contending that pressing forward with failed arguments would delegitimize the system and cast a distracting cloud over the Sept. 11 case. But Attorney General Eric H. Holder Jr. decided to go forward with defending the propagandist’s conviction and the validity of conspiracy as a tribunal charge, and the schism opened.
General Martins refused to sign the Justice Department brief in the propagandist case and announced he would seek to drop conspiracy from the list of charges in the Sept. 11 case and focus on “legally sustainable” ones, like the classic war crime: attacking civilians. But the Pentagon official who oversees tribunals refused to withdraw the conspiracy charge, citing the Justice Department. General Martins responded that his prosecutors would not argue against a defense motion asking a judge to scuttle it.
Bobby and I have pulled no punches in our criticism of the administration's decision to continue defending standalone conspiracy, but I think this narrative is a bit misleading---and I don't think it's quite fair either to Martins, to his opponents, or to the administration as a whole.
For one thing, there's nothing "gone rogue" about a prosecutor using his discretion to decline to pursue for tactical reasons a charge that may be available to him, especially when his charging options---as Martins's clearly are with respect to the 9/11 case---are an embarrassment of prosecutorial riches. I have not heard from anyone in the administration (and would be very surprised if such people exists among the administration's serious national security lawyers), who thinks Marins is wrong after Hamdan II not to rely on standalone conspiracy for pre-2006 conduct. A conservative panel of the D.C. Circuit, after all, said that material support is unavailable to Martins. The government as a whole agrees that if this is right, conspiracy is also unavailable. And four justices of the Supreme Court have said that conspiracy is not a traditional war crime. Under those circumstances, what sane prosecutor with a myriad other death-eligible charges would want to risk larding his conviction of the 9/11 conspirators with a conspiracy count that sets up a probably-merited appeal? To do so is bad trial strategy for a lawyer who wants to win. It's bad justice; prosecutors shouldn't be pursuing cases they don't think they can win under the law. And it's bad for the legal development of the institution with which Martins has been entrusted. While I'm not privy to the internal machinations within the government and wouldn't necessarily doubt that---as with many bureaucratic battles---there are some bruised feelings and egos in this one, I can't imagine that any reasonable person who considers the reality Martins faces would think that he has "gone rogue."
I also don't think it's quite right to frame, as Charlie does here, this episode as the latest in a string of incidents dating to the Bush administration in which JAGs pushed back against more political civilian leadership and stood up for the law of war. The administration as a whole, after all, faced a more intricate problem than simply whether to maintain standalone conspiracy in the 9/11 case. It simultaneously faced the problem of what to do about the Al Bahlul case, which involved a completed conspiracy and material support conviction. Prosecutors don't normally move to vacate a conviction. They particularly don't do so when they believe that the court decision that would push them in that direction was wrong---and that an appeal to a higher authority and the resulting ability to clarify the law in a positive direction is available to them. What Martins, according to Charlie's own reporting, was asking for here, in other words, would have been a dramatic step. I think it would have been the right step, for reasons Bobby and I explained in the post linked to above, but nobody should be too surprised when the Justice Department errs on the side of defending a completed conviction.
And again, there's no evidence that Martins disagrees with his internal opponents in a platonic sense as to the ideal state of the law. After all, he pursued stand-alone conspiracy aggressively up until Hamdan II. He argued strenuously on behalf of the relevance of some new research---published originally on Lawfare, actually---that seemed to support it, and actually went so far as to hire its author. In other words, this is not really a philosophical dispute about the laws of war. It's a largely tactical dispute about how to respond to an adverse decision by the D.C. Circuit so as to give the government the best chance of moving the law in a positive direction and to best protect the nascent and still-developing institution of the military commission.
Put simply, as Martins intimated recently in a podcast interview, his function with respect to prospective prosecutions and the Justice Department's function with respect to completed ones are different. And it's possible for the two groups to head in different directions without either him going rogue or DOJ's doing anything inappropriate. While I think Holder is making a big mistake here on the merits, tempting the Supreme Court to make what will be bad law from the government's point of view, that is a tactical judgment of my own. There's no particular reason why the executive branch needs a more unified position than it has---one under which DOJ acknowledges that conspiracy charges are not available for now and tries to persuade the courts to change that, while Martins lives with that reality and proceeds against KSM and others on the assumption that it will not change.