8/23 Motions Session #3: The Status of Conspiracy Redux

Mustafa al-Hawsawi’s lawyer, CDR Walter Ruiz, stands to argue AE107---a motion to dismiss certain offenses as beyond military commission jurisdiction.

Can anybody here think of such an offense?  Ruiz can, and acknowledges the prosecution’s decision not to oppose dismissal of standalone conspiracy charges in this case, in light of recent litigation in the D.C. Circuit.   ( Y’all probably have read about this and the Al-Bahlul D.C. Circuit case; if you haven't, see this Mark Martins podcast on his recommended withdrawal of the standalone conspiracy charge in the 9/11 case, the Convening Authority's decision not to go along with Martins's approach, a post on the D.C. Circuit's grant of rehearing en banc in Al-Bahlul and another on the scope of  that review, and en banc briefs in that case by government and the petitioner).  That said, Ruiz makes clear that there’s other offenses in play here, ones directly attacked by AE107.  And remember: the prosecution has said that, if standalone conspiracy charges are knocked out, the court should also make conforming changes to the charge sheet.  These would make explicit the possibility of vicarious liability for participation in what Martins characterizes as a “common plan,” or joint criminal enterprise, apparently---but Ruiz isn’t yet clear on precisely what else such changes might entail.

The Chief Prosecutor takes Ruiz’s point, for he, too notes that conspiracy is but one of many substantive crimes we’ll have to discuss in connection with AE107.  The military judge reminds himself, aloud, of the case’s posture with respect to conspiracy; Martins seeks to help him, stating that there’s more than one remedy possible here.  Conspiracy might, for example, remain on the charge sheet---if sufficiently cabined by instructions to the commission members, that they cannot convict on any inchoate basis.  But he’s got a way forward for the commission in any case, as described in AE120.

As for the substance of AE107, Martins draws on the template set forth by Hamdan II, with respect to an offense’s status under international law.  In the government’s brief, he says, they’ve walked the court through that template as regards each offense in the charge sheet.  When asked, the Chief Prosecutor tells the court that the D.C. Circuit in Hamdan II gave little weight to purely domestic commissions that had not been reviewed by Article III courts.  The military judge pauses: the appeals court had in mind offenses against the international law of war, no?  You’re resting on that approach, rather than the “domestic common law of war” approach that the United States is touting these days on appeal?  The lawyer has in mind longstanding law of war violations, he says, very much hinting at international law rather than domestic law.

It’s a big charge sheet, so Martins moves swiftly through what he views as undoubted law of war offenses, intermittently linking each to international precedents or commentary, and emphasizing throughout that he intends to pursue a well-settled theory of vicarious liability for completed law of war crimes.  Obviously attacking civilians counts here, he says.  Ditto murder in violation of the law of war.  (The second of these isn’t usually so described by international courts, Martins acknowledges, but nevertheless qualifies, so far as completed crimes go.)  Then there’s destruction of civilian property, and hijacking and hazarding of vessels, intentionally causing serious bodily injury, and, among other things, terrorism.  The latter, for example, was acknowledged by Hamdan II as a law of war offense.

A little bit more vicarious-but-not-inchoate talk comes next, as Martins refers to the court to Alstötter.  Three American judges there applied international law, and rejected freestanding conspiracy as inchoate offense---but endorsed a “common plan” theory of vicarious liability for completed offenses.  The military judge asks about “completed conspiracies;” Martins once more underscores that he’s only interested in conspiracies that precede a completed object offense.  The military judges then wonders about the allow-conspiracy-to-be-dismissed-and-then-make-changes move proposed by the prosecution.  Suppose nothing happens for the time being; if so, what is Martins’s position about freestanding conspiracy, as charged here?  The Chief Prosecutor previews his answer, which he’ll air more fully during argument on AE120.  The gist is that vicarious liability is well established in international law, as are the completed offenses described in the charge sheet.