Amici Briefs in Bahlul by International Law Scholars and First Amendment Scholars

Military commissions may only try offenses against the law of war. Whether conspiracy, solicitation, and material support for terrorism are offenses against the law of war is a question of international law. The primary sources of international law, including customary international law, treaties and proceedings from various international criminal tribunals, demonstrate that conspiracy, solicitation, and material support for terrorism are not, and have never been, violations of the law of war. Hence, this judgment must be set aside and any further proceedings must take place in the proper forum. The crime of conspiracy charged against Mr. al Bahlul is unique to Anglo-American law. It is absent from all major law of war treaties, including the Geneva and Hague Conventions, and it has been rejected in the proceedings of international criminal tribunals up to the point of the Guantánamo Military Commissions. International humanitarian law has rejected the crime of conspiracy for substantial reasons. The charge is overbroad, it is difficult to prove, and it can serve to assign criminal liability to persons who are not responsible for committing war crimes. Further, the realities of armed conflict cannot practically permit the application of the crime of conspiracy to participants in armed conflict. Likewise, the inchoate crime of solicitation is also not an offense against the law of war. It does not appear in any law of war treaty, and it has never been tried in a military commission in the United States or elsewhere. The crime of material support for terrorism is a unique domestic offense beyond the scope of the law of war. The international community has determined that material support for terrorism should be criminalized through domestic channels and United States Executive branch officials have acknowledged that material support for terrorism is not an offense against the law of war.

Americans’ and, in particular, the Framers’ understanding of freedomof speech and of press extended beyond America’s shores. EducatedAmericans were attuned to the Republic of Letters – the free flow ofpolitical and other information among citizens of different countries. Voltaire and Rousseau were not discovered by visitors to France. Theycorresponded directly with their counterparts in England and in the Britishcolonies. Their ideas and the ideas of their correspondents were oftenantithetical to the ruling classes. Some were considered treasonous andwere suppressed by British authorities. The First Amendment to the United States Constitution wasproposed, passed by Congress, and ratified by the States in this historicalcontext – a context of the need to protect the international flow ofinternational ideas. This principle extended to ideas that were a threat tothe existing order. The ratification of the First Amendment and the States’ adoption oftheir own guarantees of free speech and free press could not ensure that thegovernment would always adhere to those principles. Assaults upon thoseprinciples began as early as 1794 and continue today. Each time guaranteesof free speech and free press came under attack, the United States was atwar or was anticipating war. With two exceptions, in each instance theUnited States acted after the fact by means of pardons and remissions tocorrect prosecutions that were pursued and convictions obtained becauseof fear, anger, and prejudice. The two exceptions, the United States’ and our allies’ treatment of Nazi propagandists Leni Riefenstahl and JuliusStreicher, illustrate the application of free speech and free press rights atNuremberg. The Allies’ decision not to prosecute Riefenstahl and theInternational Military Tribunal’s decisi0n to limit the scope of theprosecution and conviction of Streicher preserved the Republic of Letters. Incitement was the key difference between Riefenstahl and Streicher. Incitement with knowledge distinguished the counts for which Streicherwas not convicted from the single count for which he was convicted,sentenced, and executed. The Nuremberg Tribunal did not recognizespeech without knowing incitement as a war crime or as a crime againsthumanity. Mr. Ali al Bahlul’s work pales in comparison to Streicher’s poisonous venom. It fails to approach Riefenstahl’s skill at inspiration and herglorification of Aryanism and the National Sozialistischen Deutschen Arbeiterpartei.