This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.
Pre-trial proceedings were again underway last week before the military commission trying the case involving the 9/11 defendants, United States v. Khalid Shaikh Mohammad et al. (The indomitable Carol Rosenberg tweeted continuous coverage.) So, I’d like to re-alert readers to one of the core legal issues in the case that may be getting lost in the shuffle given all the noise surrounding those proceedings (including controversy over a ban on female guards touching the defendants based upon an argument that any such physical contact violates the defendants’ Muslim beliefs because the guards, being non-mahram(unrelated), are eligible for marriage).
On these pages and elsewhere, I have covered a doctrinal debate playing out in several legal fora — including international tribunals and US federal courts hearing Alien Tort Statute cases — over the correct mens rea and actus reus standards for proving complicity liability. (You can find a few other posts on this here and here.) These issues have also arisen in the KSM case.
Our readers will recall that the Chief Prosecutor, Brig. Gen. Mark Martins, tried to withdraw Charge 1 of the original charge sheet — inchoate conspiracy as a standalone offense — in order to focus on “legally sustainable charges.” The then-Convening Authority, Vice Adm. Bruce MacDonald, tried to block this move, ostensibly because the Justice Department was vigorously defending the charge in another case, United States v.al Bahlul, as others on these pages have discussed. In the end, the prosecutor, in a brieffiled in January 2013, simply failed to oppose the defense motion to dismiss the charge, a decision over which the Convening Authority had no control.
The prosecutor subsequently filed a brief seeking to make certain “minor conforming changes to the charge sheet.” Specifically, the prosecutor sought to amend the charge sheet to retain certain allegations that had been associated with Charge 1. The prosecutor made clear that he intended to go forward with the full range of theories of liability — including aiding and abetting, joint criminal enterprise, conspiracy, and common purpose — in connection with the remaining substantive charges, including the war crimes of attacking civilians, murder, and related offenses. (See here for a list of prosecutable forms of responsibility before the military commissions.) In particular, the brief noted:
At trial, the government intends to prove an agreement between the five Accused and others, as well as overt acts committed by each Accused, that will establish each of their criminal liability as principals for aiding, abetting, counseling, commanding, or conspiring to commit the substantive law of war offenses that were committed during the September 11, 2001 attacks that killed 2,976 people.
The brief sought to reformulate the relevant passages of the original charge sheet as “common allegations” to “establish how each Accused is alleged to have aided, abetted, counseled, commanded, or conspired to commit the attacks [and] to keep the accused on notice of all theories liability and to reduce confusion for the panel members.”
Read the full post at Just Security.
- Publication Type:Other Writing
- Publication Date:12/14/2015