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Published on January 27, 2015
In this week’s pre-trial military commission hearings at Guantanamo Bay in the case against Abd al Hadi al-Iraqi, lawyers continued the trend of re-examining legal questions that have long been decided in federal courts.
At issue on Monday: should future jury members be able to consider conspiracy charges against the defendant, an alleged senior member of Al Qaeda, given the confusion surrounding what the legal understanding of conspiracy is in a military commission?
To understand the context, let’s take a step back for a moment. The definition of a conspiracy in U.S. federal courts is incredibly broad. That has allowed prosecutors to convict hundreds of terrorists in federal courts since 9/11. Most of them get life sentences. In international law of war, however, conspiracy is a much narrower crime, implying that a defendant had a direct hand in planning to commit a crime.
So what does conspiracy mean in the military commission system at Guantanamo Bay? So far, it’s unclear.
Defense attorneys for al Hadi stressed this point, arguing that by presenting jury members with a charging document that included conspiracy language, jurors would naturally assume it means conspiracy as we think of it in America, conjuring images of mobsters and RICO cases. This would allow the government to take advantage of the federal court’s broad conception of conspiracy as well as the extremely flexible rules for admissibility of evidence in military commissions.
As the defense pointed out, the government is trying to have its cake and eat it too. The prosecution responded that the judge’s final instructions would take care of it—he would come to some kind of decision about what conspiracy meant for the military commission, and then instruct the jury members.
If it sounds confusing, that’s because this is all incredibly murky territory.
Unlike the civilian federal courts, which have a long history and well-established precedents, the military commissions were only created after 9/11. This particular version of them has only been around since 2009. The conspiracy charge itself has been a point of confusion and contention since the beginning, and remains unresolved.
So the question remains, what does conspiracy mean in a military commission? Perhaps more importantly, why, when federal courts have settled the issue and successfully prosecuted hundreds of terrorists on conspiracy and other charges since 9/11, do we insist on holding these cases in military commissions?
I doubt we’ll get an answer to that question at the al Hadi hearings, which continue throughout this week.
