A Nugget of Real News in General Martins's Statement

Last night, Wells posted a statement by Military Commissions Chief Prosecutor Mark Martins about the weeklong Nashiri hearing getting under way today at Guantanamo. The statement contains the following sentence: "I also assess at the present time that there are no additional prosecutions against Guantanamo detainees that would be made possible by the existence in the military commissions system of a fully viable standalone conspiracy charge for pre-2006 conduct." To the average reader, this sentence might not seem like much. But for military commission nerds, it's a bit of a wow. It means that the practical consequences of the Al Bahlul case---at least as to conspiracy---is very muted. For those non-commission nerds (ie, normal people) who need a brief refresher: the issue in Al Bahlul was---among other things---whether standalone conspiracy for pre-2006 conduct is available as a charge in commissions. It pretty clearly is available for post-2006 conduct. And conspiracy for pre-2006 conduct is available to the extent the conspiracy was completed and carried out---in other words, to the extent that conspiracy is a mode of liability for a successful plot, not a crime in and of itself. But it remains in doubt whether conspiracy on its own is available for pre-2006 conduct. The practical consequence is that no responsible prosecutor would try to use it again. And at least according to Martins, this outcome actually affects zero cases. The reason, I imagine, is that---as in the current military commission prosecutions---plots tend to have been completed, so pure conspiracy isn't really necessary to get at the Guantanamo detainees for whom military commissions are the appropriate prosecution venue. On the other hand, the absence of a material support for terrorism charge for pre-2006 conduct---the holding in Hamdan, which was also a feature of the Bahlul en banc----no doubt does affect a body of cases, substantially reducing the number of Guantanamo detainees whose cases can be resolved by criminal prosecution. But General Martins did not address that question.