Bush says conspiracy is a war crime


Richard Moore

Bush wants 'conspiracy' to be a war crime. I'd be in favor of that as well, 
provided that the worst conspirators are indicted first, ie., Bush, Cheney, 
Blair, etc. etc.


Original source URL:

from the August 14, 2006 edition
Is conspiracy a war crime?

The White House urges Congress to say yes, because it makes terror convictions 
easier. The high court is split.

By Warren Richey | Staff writer of The Christian Science Monitor

Salim Ahmed Hamdan never planted a bomb, never took a hostage, never wielded a 
box cutter, never fired a weapon in anger, and never planned an attack of any 

What he is alleged to have done, according to his US military commission charge 
sheet, is work as Osama bin Laden's driver in Afghanistan.

So how could military prosecutors at Guantánamo Bay, Cuba, charge him with being
a terrorist and war criminal? The answer boils down to a single word: 

The same legal approach that helped put mafia dons, capos, and associates behind
bars in America is at the center of US military efforts to prosecute suspected 
Al Qaeda members for war crimes.

But now in the wake of the US Supreme Court's decision in the Hamdan case 
invalidating the military commission process, it is unclear to what extent 
military prosecutors can continue to use conspiracy as a war crimes charge.

The Bush administration is asking Congress to simply pass a law recognizing 
conspiracy as a war crime.

But some legal experts warn that the law of war is a reflection of both domestic
and international standards that should not be watered down unilaterally by US 
lawmakers. They say such a move would further undermine US standing as a 
champion of human rights and set the stage for another major defeat in the 
courts for President Bush.

"This is just contempt for the court's opinion," says George Fletcher, a 
professor at Columbia Law School who authored a friend of the court brief in the
Hamdan case that first raised the conspiracy issue. "If Congress says we can go 
around it, that is just crazy. They don't understand what they are doing."

In its June opinion, a five-member majority of justices struck down the military
commissions at Guantánamo because they did not comply with the requirements of 
the Uniform Code of Military Justice and Common Article 3 of the Geneva 
Conventions. That part of the decision addressed what the high court viewed as 
fatal procedural defects - including a rule allowing the exclusion of a 
defendant from parts of his own trial.

Congress is now considering how best to rewrite those procedures to strike the 
proper balance between a fair trial and safeguarding national security.

But there is another part to the Hamdan decision. Four of the eight justices 
participating in the case ruled that the military commissions at Guantánamo did 
not have jurisdiction under the law of war to prosecute suspected Al Qaeda 
members for allegedly engaging in a conspiracy.

Conspiracy is not a war crime, said Justice John Paul Stevens in his plurality 
decision. And special military commissions can only try war crimes, he said.

Conspiracy charges for 10

The ruling is significant because all 10 detainees at Guantánamo slated for 
military commission trials have been charged with conspiracy, and seven of them 
(including Mr. Hamdan) face only a single conspiracy charge.

According to the Stevens plurality, military prosecutors must base their cases 
on actual war atrocities or attempted atrocities, not merely on a criminal 
agreement (conspiracy) to violate war crimes. Legal experts say this 
significantly increases the burden military prosecutors would face to win 
convictions at trial, and some say it could make it impossible to convict 
defendants like Hamdan.

Justice Anthony Kennedy provided the decisive fifth vote striking down 
Guantánamo commission procedures in the Hamdan decision. But he declined to 
provide a fifth vote on the jurisdictional question involving conspiracy. 
Instead, he left the matter to the legislative branch.

"In light of the conclusion that the military commissions at issue are 
unauthorized, Congress may choose to provide further guidance in this area," 
Justice Kennedy wrote in his concurrence. "Congress, not the court, is the 
branch in the better position to undertake the sensitive task of establishing a 
principle not inconsistent with the national interest or international justice."

Analysts say it is unclear how Kennedy might vote in a future case.

"What does Kennedy think about this? We'll be asking that a lot," says Diane 
Amann, a law of war expert at the University of California, Davis, School of 
Law. But she adds, "The fact that Kennedy held back - if I were the government I
would not take comfort in that fact."

In a dissenting opinion in the Hamdan case, Justices Clarence Thomas, Antonin 
Scalia, and Samuel Alito said the law of war is flexible enough to permit 
military commissions to hear conspiracy cases.

"The plurality's inflexible approach has dangerous implications for the 
Executive's ability to discharge his duties as Commander in Chief in future 
cases," Justice Thomas wrote.

The Bush administration agrees with Thomas's expansive view of presidential 
power. "We believe that the dissenting opinion in Hamdan was correct in its 
analysis and that the plurality's view on this particular question is not 
sustainable," Acting Assistant Attorney General Steven Bradbury told a Senate 
Judiciary Committee hearing on Aug. 2.

In the same hearing, Sen. Dianne Feinstein (D) of California asked the top legal
officials for each of the four armed services whether Congress should designate 
conspiracy as a war crime for use in military commission trials at Guantánamo. 
Three said yes, one said he would prefer a charge of providing material support 
to terrorists.

"If the Congress is just going to try to add conspiracy onto the existing 
military commissions, that could be problematic," says Michael Scharf, director 
of the Frederick K. Cox International Law Center at Case Western Reserve 
University School of Law. "I think they are better off leaving conspiracy out of

Professor Scharf and other international law experts say that while conspiracy 
charges are an accepted part of the legal system in the United States and 
Britain, that legal approach has been rejected by most other countries - 
including international war-crimes tribunals.

Full rights for mafia, not detainees

In addition, analysts say that when federal prosecutors used conspiracy charges 
to help convict organized crime figures in the US, the alleged mafia members 
were afforded all the legal protections of the US court system. In contrast, 
military commissions don't provide the same range of trial protections.

One alternative to conspiracy, analysts say, is to charge suspects with a form 
of aiding and abetting. That would bring the military commission process within 
international standards. But it would also make it harder for prosecutors.

"From a prosecutorial standpoint, prosecuting someone for aiding and abetting 
requires a heck of a lot more proof than prosecuting them for conspiracy," says 
Professor Amann. Military prosecutors may not have enough evidence to win an 
aiding and abetting case, she says.

Scharf says military prosecutors still might win convictions. "My hunch is that 
everybody they are interested in trying, they can get for either committing the 
crime [a specific atrocity] or aiding and abetting. They don't really need the 
conspiracy," he says.

The bottom line, these analysts say, is that conspiracy charges would make it 
much easier to win convictions, but in the eyes of most of the world such trials
would be viewed with suspicion and distrust rather than as beacons of 
international justice.

"Most people around the world look at the Hamdan decision as a return to the 
rule of law," Professor Fletcher says. "If Congress defies the Supreme Court and
says: 'No, we think we can get around this,' it will hurt the country 

www.csmonitor.com | Copyright © 2006 The Christian Science Monitor. All rights 

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