World War II-Era Herbert Weschler Memo on Conspiracy as War Crime

This is a pretty interesting document: A 1944 memo from Herbert Weschler, then assistant attorney general, outlining the U.S. government's developing view of conspiracy as a war crime. The interesting thing is how similar the internal discussion of the subject in 1944 is to the one going on now in the Bahlul case---and how similar Weschler's conclusions are to those the government has come to after long internal deliberations. The document was filed as as attachment to this pleading in the Nashiri military commission, which notes that the government's current approach to conspiracy is "consistent with high-level Executive Branch consultations that have occurred in prior United States law of war prosecutions" and cites the memo as an example. In fact, the similarities are pretty striking: Weschler in the memo acknowledges that there may be a U.S. common law of war approach under which inchoate conspiracy is available as a crime. But as this is not universally accepted, he instead urges---just as the military commission prosecutors are now and for much the same reason---limiting conspiracy liability to instances of a completed offense. Here is the key exerpt from the memo, written to Attorney General Francis Biddle:

In proposing that the Nazi leaders be prosecuted for the type of conspiracy described above, it is unclear whether the War Department proposal assumes that such a charge has present legal validity under the laws of war or whether some additional legislative definition of the crime is necessary, in the existing state of international law, if the German leaders are to be brought to account in these terms. The proposal that the treaty define the crimes to be punished is itself ambiguous on this point and requires appropriate clarification. In developing such clarification, the principal difficulty is the fact that some of the elements of the conspiracy charged, (notably vilation [sic] of treaties, atrocities committed upon German nationals on racial, religious and political grounds and atrocities committed prior to a state of war) are not embraced within the ordinary concept of crimes punishable as violations of the laws of war. For this reason alone, it is desirable that the treaty definition purport not merely to measure the jurisdiction of the tribunal but also to provide the substantive law under which the prosecutions are to be brought. It may be opposed to this view that any treaty definition which goes beyond the laws of war would have retroactive application in violation of the principle nulla crimen sine lege, a principle that the Nazis rejected in Germany but that would ordinarily weigh with us. I think it a sufficient answer that the crime charged involves so many elements of criminality under the accepted laws of war and the penal laws of all civilized states that the incorporation of the additional factors in question does not offer the type of threat to innocence which the prohibition of ex post facto laws is designed to prevent. The problem, moreover, is not a legal problem in any genuine sense since under international law the victors may determine the terms of peace. The problem is, in any event, not crucial since the same result can be achieved by eliminating from the concept of the crime the elements of world domination and treaty violations, stating the definition entirely in terms of (a) violations of the laws of war and (b) violations of the principles of criminal law recognized by all civilized states. This approach would completely eliminate any basis for objection founded upon the principles underlying the maxim nulla crimen sine lege. The theory of multiple liability for criminal acts executed pursuant to a common plan presents no comparable problem, being common to all developed penal systems and easily included within the scope of the laws of war. In connection with multiple liability, it should be noted that some confusion may be engendered by the terminology of the War Department proposal which refers to the basic crime as a "common-law conspiracy", employing that concept as it is known to American law. I should suppose that what is really to be condemned as criminal is not the inchoate crime of conspiracy but rather the actual execution of a criminal plan. The theory of conspiracy affords a proper basis for reaching a large number of people, no one of whom engaged in all the criminal conduct, but it is an error to designate as conspiracy the crime itself, the more so since the common law conception of the criminality of an unexecuted plan is not universally accepted in civilized law. The point is rather that multiple liability for a host of completed crimes is established by mutual participation in the execution of the criminal plan. The Nazi leaders are accomplices in completed crime according to concepts of accessorial liability common, I believe, to all civilized legal systems.