June 12 Session #4: On Vicarious Liability

We return, refreshed, from a longer-than-expected lunch break.

An announcement from the military judge: Al-Nashiri has decided to remain in his holding cell this afternoon, and view proceedings via CCTV from there.  There’s no translation of the courtroom proceedings in the cell, but he’s comfortable with that arrangement, reports Kammen. The accused’s absence triggers a voluntariness colloquy with a government witness, JTF-GTMO’s LT CDR George Massucco.  The detainee, the witness tells us, was advised of, understood, and knowingly waived his rights to take in the afternoon’s action in person.  The court so finds, and we press on.  And it turns out there won’t be any further testimony from Broyles; and no further witnesses on AE153G either.

So what of that motion’s merits? It was filed as a request to continue April hearings, notes the court---and those were, indeed, continued.  Then, the court proposes, perhaps we can defer this discussion, in light of AE153, the defense’s other pending request to push back future sessions in August and beyond.  More brass tacks: there also will be a Rule 505(h) hearing today, regarding AE142 and Al-Nashiri’s exclusion from closed sessions, later this afternoon.

Housekeeping done, we move to AE48C, the defense motion to dismiss the charge of conspiracy, in light of the D.C. Circuit’s decision in Hamdan II.  

Be not fooled by the prosecution-defense accord on the law, says defense lawyer Maj. Allison Danels.  Simply because all parties acknowledge conspiracy’s status as a non-war crime, does not mean the defense accepts the prosecution’s proposal to amend the charge sheet.  Those proposed changes are big, she says.  Our opponents' idea is to convert the conspiracy charge into a “common allegation,” which spans the entire charge sheet.  The court: couldn’t the prosecutors advance a vicarious liability theory without conspiracy charges?  Yes is Danels’ answer.  Then why the dispute?  Here’s Danels: At present, the conspiracy claim covers only two substantive counts, murder in violation of the law of war and terrorism.  But now, Danelsargues, the prosecution wants to broaden the vicarious liability theory, so as to touch all charges in the case.  That’s a no-no in military practice. Note also that the prosecution relies on the Altstotter ruling (the “Judges’ Trial”)---where object offenses were alleged.

After a pause, she continues with a note about Hamdan II’s larger import: if conspiracy isn’t a valid offense, why is conspiracy permissible, when charged by another name?  The government ought to withdraw the charges and swear them anew, so as to include their belated theory of liability, Danels maintains.  The proposed changes strikes Judge Pohl as less than major, gauging by his questions to the lawyer.  We’re talking about a change to the charge sheet, the court explains, not a wholesale alteration to the charges themselves.

Rebuttal for the government will be offered by the Chief Prosecutor.  He thinks the prosecution’s proposed action is appropriate, and proposes to clarify matters that Danels left muddy.  Thus begins a glass-bottom-boat tour of Hamdan II’s reasoning, as grounded in Article 21 of the UCMJ.  (Almost to himself, the court notes the pendency of en banc proceedings in Al-Bahlul.)  According to the D.C. Circuit, “law of war” in the venerable statute meant the international laws of war.  Questioned by the court, Martins speeds up a bit and emphasizes what he wants to do: dismiss conspiracy as a standalone offense, and opt for a vicarious liability approach (which, he adds, has always been in play here, on some level).  The court: you’ve conditioned your consent to dismissal on, one, an instruction on vicarious liability, and two, amendments to the charge sheet reflecting a common plan.  Judge Pohl hasn’t seen this before.  But the idea is far from novel, Martins argues, and is indeed grounded in international law.  Hamdan II, for example, cited treaties and similar international materials.  (As he argues, Martins later refers to Article 25 of the Rome Statute, which is displayed on both the Guantanamo screen and on ours here at Meade.)

The charges have always alleged Al-Nashiri as a principal, he says further---thus pushing back on the defense’s suggestion of a “major” change to the case’s charging documents.  And look at the MCA 2009.  It seems to codify the Chief Prosecutor's preferred theory, stating that those who aid, abet, counsel or command the commission of violations shall be deemed principals---a category that, again, encompasses Al-Nashiri.  The Chief Prosecutor underscores that, under its proposal, Al-Nashiri’s guilt could not be established by a criminal agreement only.  So-called Pinkerton liability instead calls for agreement, and completed conduct.  At the same time the prosecution also must, in advance, announce that it intends to proceed on a vicarious liability theory, so as to furnish proper notice.  The court hints at the panel’s future findings, in light of would-be instructions---though he, and Martins, agree that any rubric for jury determinations will be resolved much later in the case.  Interestingly, when pushed by Judge Pohl, the Chief Prosecutor says that---despite his obvious and strong preference for conforming edits to the charges---the case theoretically could proceed with conspiracy stricken from the charge sheet, and without further tweaks to it, so long as jurors were informed that they could not convict solely on the basis of a freestanding conspiracy.  (In Quirin, notes Martins, the saboteurs argued that if they were acquitted on substantive counts, then they could not be convicted on conspiracy counts, too.)  He thus envisions an instruction that Al-Nashiri must be held responsible for completed acts.  No conviction for an “agreement crime” only, he contends once more.  The court again speculates that an instruction, at the trial’s beginning, will do the work of any conforming edits.  We’ll have to get to such an instruction quickly then, Judge Pohl says.  Right, says Martins, but the prosecution nevertheless wants to make as clear as possible, as early as possible, what its position is going forward.  Thus his motion.