Charging Decisions After Hamdan II and Al-Bahlul: Al-Nashiri Seeks to Dismiss Conspiracy and Terrorism Charges

Reported on Friday by the Miami Herald's Carol Rosenberg: defense attorneys in United States v. Al-Nashiri filed a renewed motion to dismiss the conspiracy charge against their client.  At the same time, the lawyers reactivated an earlier request to throw out a terrorism charge from the capital commission case, one of two ongoing at Guantanamo. The filings are undergoing a security review, and thus not accessible to Lawfarers.  But it is easy enough to guess at the motivation behind the motions, most obviously with respect to conspiracy.  Al-Nashiri's lawyers want the charge dismissed because of recent activity in the 9/11 case, in which Chief Prosecutor Mark Martins has recommended withdrawal of conspiracy charges against Khalid Sheikh Mohammed and four co-accused. This was a discretionary, tactical choice, made at the same time the Justice Department opted to continue defending, in Hamdan II and al-Bahlul, seemingly doomed material support and conspiracy charges for pre-2006 conduct.  The Chief Prosecutor elaborated on these developments during last week's Lawfare Podcast; also, in a a written statement, Martins explained that the reasoning of Hamdan II---which held unanimously that material support was not an internationally recognized war crime at the time of the accused's alleged actions, and thus could not be charged in connection with conduct occurring prior to the 2006 MCA---had created "uncertainty about whether the courts would reach a similar conclusion as to the permissibility of charging conspiracy as a stand-­‐alone offense involving pre-­‐2006 conduct."  In view of that uncertainty, the Chief Prosecutor asked the Convening Authority to withdraw conspiracy charges against the five 9/11 accused.  And yet prosecutors did not immediately follow suit in Al-Nashiri's case.  In fact, according to the Miami Herald story, Al-Nashiri's challenge to the conspiracy count was filed "over the objections of the case['s] prosecutors." So: conspiracy may be unilaterally withdrawn in one capital case, but still nominally pursued in another, despite an acknowledged legal risk that arguably applies to---and counsels withdrawal of conspiracy charges---in both.  What's going on? One possibility is that the "objections" above are strictly formal, and that in Al-Nashiri, the government eventually will opt for a 9/11-ish approach---that is, forgo conspiracy, while pressing forward with more legally solid charges.  Alternatively, the prosecution may choose to pursue conspiracy charges in Al-Nashiri, on the quixotic assumption that DOJ will defy exceedingly unfavorable odds and eke out a victory before the full D.C. Circuit and/or the Supreme Court.  (I heartily concur in Bobby and Ben's panning of DOJ's chosen course of action, for much the same reasons as they describe.) In any event, we'll have a better sense of the government's thinking soon enough: according to the docket, prosecutors have not yet responded to Al-Nashiri's latest motions (which themselves should clear security review in the coming days).