Military Commissions, Conspiracy, and al-Iraqi

Over the weekend, I blogged over at Just Security about the al-Iraqi case pending before the military commissions at Guantánamo—and, in particular, Saturday’s New York Times story reporting that the government has amended the charge sheet against al-Iraqi to add a charge of conspiracy. As readers likely know, the en banc D.C. Circuit will soon decide, in the al-Bahlul case, whether the commissions may try conspiracy as a standalone offense for conduct that pre-dated the MCA’s October 17, 2006 enactment—i.e., whether Congress did, and constitutionally could, retroactively authorize trial by military commission of an offense not recognized as an international war crime at the time of its commission.

What appears to distinguish al-Iraqi is the timing. As I noted over at Just Security, al-Iraqi was one of the last detainees sent to Guantánamo. And, as the amended charge sheet indicates, at least some of the conduct giving rise to the charges against him appears to have post-dated the MCA’s enactment. (See especially ¶¶ 58–63 of the Charge Sheet posted on Friday.) Thus, so long as the Convening Authority approves these amended charges, al-Iraqi appears at least superficially to be a post-Bahlul test case—an opportunity for the government to ensure that the commissions will at least be able to entertain conspiracy and material support prosecutions based upon post-MCA conduct. I’ve previously flagged the difficult constitutional question that would therefore arise—whether Congress may subject to trial by military commission offenses not recognized as violations of the laws of war, even prospectively. In this post, though, I want to explore two distinct questions that would have to be resolved before we could ever get to that larger, more wide-ranging issue.

I. When Does a Conspiracy “Arise”

Al-Iraqi is only a test case along the lines described above if the conspiracy charge is, indeed, prospective. In other words, is it the case that the allegations, if proven, would demonstrate that al-Iraqi committed the crime of conspiracy on or after October 17, 2006? My (admittedly amateurish) understanding of federal conspiracy law is that a conspiracy continues to exist after a date certain so long as (1) the conspiracy subsists; and (2) at least one overt act in furtherance of the conspiracy is committed after that date. (This issue arises most often in the context of statutes of limitations defenses, and computing when such statutes begin to run.) Thus, whether al-Iraqi is the test case for future military commissions that I suggested on Saturday turns on whether the allegations in ¶¶ 58–63 of the Charge Sheet, all of which pertain to false statements made to Turkish immigration officials “in an effort to continue to travel undetected to Iraq to advise and assist AQI with its insurgency,” constitute “overt acts” in furtherance of the underlying conspiracy. That determination, in turn, depends upon the “scope of the conspiratorial agreement,” as the Supreme Court has long explained. Thus, for al-Iraqi to actually raise the question of whether Congress could authorize prospective military commission prosecutions for conspiracy, the government would have to prove that the scope of the underlying conspiracy included al Qaeda’s effort to facilitate the insurgency in Iraq. And even then, it would remain to show that the false statements to Turkish authorities (which, it bears underscoring, accomplished absolutely nothing) were overt acts in furtherance thereof. Otherwise, al-Iraqi is, like Bahlul, a conspiracy prosecution based upon pre-MCA conduct.

II. Is the Conspiracy Charge a Theory of Enterprise Liability or a Standalone Offense?

Insofar as the conspiracy charge in al-Iraqi is based upon wholly pre-MCA conduct, it does bear one important distinction from the conspiracy charge in al-Bahlul: Its relationship to completed offenses. Whereas al-Bahlul was convicted solely of conspiracy, the charges against al-Iraqi include four substantive war crimes—denying quarter, attacking protected property, using treachery or perfidy, and attempting to use treachery or perfidy. Insofar as the conspiracy charge is, in effect, a charge that al-Iraqi conspired to commit these substantive offenses, it raises a different question from al-Bahlul, for the government could then argue that conspiracy is, in essence, a theory of enterprise liability for the completed offenses, as opposed to a standalone offense unto itself. This would matter, in turn, because it would allow the government to argue that, unlike in al-Bahlul, international law does provide support for the prosecution: The completed offenses are established war crimes; and international law recognizes joint criminal enterprise as a theory of liability for completed offenses. Such an argument only begs the question whether the government can ameliorate ex post facto concerns by using the existence of a theory of liability as adequate precedent for the existence of a substantive offense. But, critically for present purposes, that question has not yet been resolved by the D.C. Circuit, and almost certainly won’t be in al-Bahlul. In other words, the bottom line of my post from Saturday remains true: al-Iraqi could well become a critical test case for the future of the military commissions at (and perhaps even after) Guantánamo. What’s less clear is the specific ground on which it could set such an important post-Bahlul precedent—for trials of conspiracy as a standalone offense for post-MCA conduct; for trials of conspiracy to commit completed war crimes for pre-MCA conduct; or, potentially, both.