June 13 Session #1: Hamdan II and Terrorism Charges

The hearing resumes, with all parties present including the accused.

Capt. Daphne Jackson, one of Al-Nashiri’s defense attorneys, stands in support of AE49C.  This motion renews an effort to have a terrorism charge dismissed---the theory being that terrorism isn’t an offense against the laws of war, or at least was not at the time of the accused’s alleged conduct.  And that’s a no-no, given Hamdan II, the D.C. Circuit decision that prompted Al-Nashiri once more to challenge the terrorism count.  Thus Jackson focuses her argument on the appellate court’s opinion, the logic of which forecloses jurisdiction over terrorism.  Under Hamdan II, the question is whether that offense is recognized under the international law of war---and the answer, according to Jackson, is “no.”  Acts of terrorism are one thing.  But “Terrorism” as such is a broad category, almost a colloquialism---it doesn’t describe a particular offense.  That’s why no courts, commentators, or international bodies have deemed terrorism to be a freestanding law of war crime.

The court: is Hamdan II the controlling law here, or is it the CMCR opinion in Al-Bahlul?  He thinks it might be the latter, right or wrong.  For Jackson, Hamdan II affects Al-Bahlul, which, as all know, remains pending, and the former's reasoning cuts her way.  Judge Pohl is skeptical; he doesn’t want to get ahead of the appeals courts.  What if the en banc proceedings end up with a cross-cutting government victory?  At this juncture, Jackson says, Hamdan II is the best authority we have.  Apropos, here’s Jackson citing the case, which referred to sources that demonstrate terrorism’s invalidity as much as material support’s.  The former and latter are not firmly grounded in the international law of war, argues the attorney.  The military judge sums up: Hamdan II limits military commission jurisdiction to law of war offenses, existing before 2006?  Yep.  Jackson sits down.

The Chief Prosecutor, Mark Martins, stands.  Regarding Al-Bahlul, he wasn’t charged with terrorism at all---but its analysis of material support for terrorism was stricken by the D.C. Circuit.  The court catches on: the terrorism talk was inextricably intertwined with the material support analysis.  Better, Martins says, to look to whether terrorism was, in fact, an international law of war crime, on or before 2006.  (In that respect,the parties appear to agree.)  It certainly was here, in Al-Nashiri’s case.  Systematic terrorism has been a part of the laws of war for ages.  Martins here refers to his brief, and various authorities cited therein, including the Paris Conference of 1919.  Trying to strike fear, to change policy, and so on---that is what terrorism does, and it has been proscribed for many years.  And in any event, Hamdan II specifically described “terrorism” as a “recognized international-law war crime.” The offense is in the “sweet spot,” of international law, as Martins puts it.  Thus no ex post facto problems are present, as they were in Hamdan II.

All this bears not only on terrorism, but also on conspiracy, Martins explains---and to the defense’s recent effort to have the latter knocked out of the case in light of Hamdan II (AE48C).  This is part and parcel of the government’s vicarious liability theory.  The defense insists---in 48C---that Al-Nashiri had no notice of the prosecution’s intent to prove, with specific intent, the accused’s participation a criminal scheme.  And its the defense that wants to strike allegations from the terrorism count, which are necessary to the proof of Al-Nashiri’s intent to take part in that scheme.  Thus the charge sheet needs to preserve the terrorism charge, and the overt acts charge therein, lest the vicarious liability theory be compromised.  Don’t carve this stuff out, your honor.  (For clarity’s sake, Martins adds once more that terrorism is, in fact, a law of war offense.)

Remember Altstoetter?  Martins sure does, referring the military judge to that famed case.  There was a conspiracy charge, and other war crimes charges in play, too.  The defense filed a motion to strike, argues the Chief Prosecutor, which saw extensive argument.  But the court afterwards found that count I---conspiracy---couldn’t be stricken, because of its relationship to a “common plan” or Joint Criminal Enterprise theory advanced by the prosecution.  The terrorism allegations here thus cannot be carved away neatly, either, given their importance to the “common plan” theory Martins and crew seek to pursue vis a vis Al-Nashiri.

Reply argument from Jackson, who reiterates: we’re only dealing with terrorism here, she says, not the government’s charge sheet or the consequences for changing it.  What matters for you is an ex post facto question, about the status of terrorism.  And again, Hamdan II is what matters here.  Under that case, analogies to obscure evidence won’t suffice to establish terrorism’s validity.  Take the World War I examples cited in the prosecution brief---that referred to mass killing of non-combatants, not to “terrorism.”  The military judge asks whether the terrorism definition in the MCA must track the definitions in international sources.  How close does the fit have to be?  Not perfect, answers Jackson, but certainly closer than the match between the historical stuff collected by the government, and the MCA’s definitional language.  The court also pushes Jackson on her “specific act v. broad category” claim.  Isn’t there specific acts language in the statute?  Yes, but the problem goes to international law authority---which, again, doesn’t support a terrorism offense standing alone.  You’ve got to look at specific sources under Hamdan II, in order to determine terrorism’s status.  As for JCE and vicarious liability, well, we’re not here to deal with those things.  Our motion attacks terrorism as an international law of war offense, and nothing more.  It’s not the defense’s job to worry about the wording of a charge sheet, either; but in any case, how could excising vicarious liability language harm the prosecution, given the Chief Prosecutor’s claim yesterday, that such language need not appear in the charging documents to begin with?  She winds up by emphasizing Hamdan II  once more.

That last part prompts sur-rebuttal by the Chief Prosecutor.  Look at the precedents in our brief, he urges.  They make clear that the this charged conduct involves completed acts---specific acts under the header of terrorism.  Contrast them with the conduct alleged in Hamdan II, and with that described in international decisions, all of which seemingly disapprove of freestanding, inchoate war crimes.  There’s just no ex post facto issue, he says.