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by By Neal Katyal
Friday, March 19, 2004

The rush to create the fig leaf of justice at Guantanamo Bay has begun. Next month, the Supreme Court will review the Bush administration's claim that no one at Guantanamo is entitled to civilian court adjudication of their detentions. On the eve of the Supreme Court deadline for filing its brief defending that policy, the administration announced a newly minted procedure for annual reviews of detentions. The irony of this and other actions (including the decision announced the day before another Supreme Court filing deadline, to allow Jose Padilla, the alleged "dirty bomber," access to a lawyer) should not be lost: By modifying its policies in the past months, the administration has made the definitive case for civilian review of Guantanamo. The only due process that's happened there came only after the Supreme Court agreed to hear the case.

But don't let these initiatives lull you into thinking that the administration has suddenly decided to follow the rule of law. The most dramatic step—and one likely to be trumpeted by the government at oral argument—was their decision to bring the first charges against detainees: charges based on the offense of conspiracy, to be heard by the first military commission since World War II. As some readers of Slate know, I am a big fan of the conspiracy doctrine in general . But despite the tremendous merits of our civilian conspiracy law, these military charges are unconstitutional, inconsistent with international law, and unwise.

They will demonstrate what critics of the military tribunals have been saying all along: that the administration has sought to create an end run around guarantees of fundamental rights enshrined in our Constitution and universally accepted agreements such as the Geneva Conventions.

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There are three main problems with the conspiracy indictments at Guantanamo. The first is their targets. One would have thought that, having decided to rock the constitutional order and flout international law, the administration would have at least reserved the military tribunals for the worst offenders—Osama Bin Laden and the like. Instead, charges have been filed against, if the prosecutor's claims prove accurate, someone armed with a TV camera (a videographer of the Cole bombing) and Bin Laden's accountant—both of whom also allegedly served as his bodyguards. While glorifying the Cole bombing and moving al-Qaida money are certainly bad acts, if there were any evidence that these two men actually engaged in serious war crimes, it would be in the indictment. It's not. Instead, the government can only allege the amorphous crime of aiding of al-Qaida.

Contrast these vague indictments with the position of Assistant Attorney General Herbert Wechsler during World War II. Wechsler, perhaps the most important 20 th -century scholar of American criminal law, deplored a Pentagon proposal to file conspiracy charges against Germans who were not "prime leaders." To Wechsler, such charges could not be based on ideas drawn from American conspiracy law without "proof of personal participation in a specific crime." In the absence of such proof, he said, "the force of the broad criminal charge against the leaders may be seriously weakened in the eyes of the world," especially "if too many individuals are included in it." Today there is no Wechsler in the administration advising restraint—striking, in light of America's recent experience with the Independent Counsel Act, another device that encouraged overzealousness at the price of balance and fairness. Fairness and process, of course, can give way in an emergency or when the matter concerns Bin Laden or his close associates. But a cameraman and an accountant, even if they double as bodyguards, just don't come close.

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The second problem is in the substance of the conspiracy charges. The Department of Defense, bowing to the will of the prosecutors, defined the offense of conspiracy in the broadest terms possible . This definition is similar to the one the United States proposed to use at Nuremberg, with disastrous results. When the Americans proposed it then, it was roundly criticized by our allies. And when a variant of it was used at trial, the Nuremberg judges ruled that there could be no such offenses as conspiracy to commit war crimes or conspiracy to commit crimes against humanity. Even U.S. Attorney General Francis Biddle, who sat as a judge, wanted to throw out the conspiracy charges altogether. The result of the Nuremberg ruling was to confine conspiracy only to very limited acts and only against high-level German officials, directly involved in specific acts of aggression. This glaring deficiency will pose problems because the Supreme Court has acknowledged that military commissions can, at most, only try violations authorized by Congress or international law, and the current conspiracy charges do not fit either category.

To make matters worse, the conspiracy charges in both of the indictments are based largely on conduct that occurred before 9/11, yet military commissions can only adjudicate violations of the laws of war. It is a tremendous stretch to argue that this war began in 1999 or 1989. (No doubt that claim would be news to former President Clinton and his national security team. Indeed, it would apparently be a surprise even to President Bush, who, in justifying his campaign's use of 9/11 imagery, stated at a March 6, 2004, press conference, "The terrorists declared war on us that day.") Again, Wechsler is instructive: "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."

There are good reasons why the laws of war, unlike American civilian law, place powerful limits on the conspiracy doctrine. Recall that the civilian offense is based largely on a theory of deterrence—that draconian punishments will scare people into avoiding association with criminal organizations. But these arguments fail with respect to the military proceedings at Guantanamo. For one thing, the idea that other would-be war criminals are watching the proceedings at Guantanamo and modifying their conduct is far-fetched, especially if, as the Pentagon has asserted, the proceedings may be closed to public view. For another, deterrence works best when the perceived costs of the action exceed the perceived benefits, and it is very difficult to make a claim that the speculative risk of punishment in U.S. military courts would change the calculus of future war criminals (particularly when military operations against them are already ongoing). This isn't to say that there is no upside to conspiracy charges, only that the benefits are more attenuated than they are in ordinary criminal cases and eroded by serious risks of error. And if there are cases in which the advantages of a conspiracy charge become apparent, then the administration is free to use the civilian offense of conspiracy—one written into law by Congress instead of drafted by a Pentagon bureaucrat—in a standard criminal action.

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The third and final problem with the Guantanamo tribunals lies in the procedural rules. American criminal law has been able to develop a vibrant offense of conspiracy only because of its strong commitment to criminal procedural guarantees. So, while charges can be somewhat vaguer in a civilian conspiracy trial and hearsay evidence may be admitted, the standard checks on prosecutorial and judicial abuse exist—indictment by a grand jury, the right to a jury trial, the right to confront witnesses, the right to obtain exculpatory evidence, and so on. Those of us who defend a broad substantive offense of conspiracy treat these procedural rights as preconditions before such a wide-ranging offense could be established. Yet the military tribunals offer no such guarantees.

The administration thus gives birth to a legal Frankenstein. It picks its jurisdictional theory—that no one can have civilian review—from 1950, before we had earth-shattering developments in international law (e.g., the Geneva Convention's ratification and its worldwide acceptance) and domestic military law (the 1951 Uniform Code of Military Justice). It picks its procedural theory from the same time period—before the massive revolution in procedural rights in American criminal trials. And it derives its substantive law—the offense of conspiracy—from no real time period at all; it's inspired by cases brought in the 1970s against organized crime. This mix-and-match cannot produce even the closest approximation to fairness.

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The chief criticism of the tribunals has always been that the president cannot have the unilateral power to define offenses, pick prosecutors, select judges, authorize charges, select defendants, and then strip the civilian courts of all powers to review tribunal decisions. This principle goes all the way back to the Declaration of Independence, which listed, among the founders' complaints against King George, that he "has affected to render the Military independent of and superior to the Civil Power"; "depriv[ed] us, in many Cases, of the benefits of trial by jury"; "made Judges dependent on his Will alone"; and "transport[ed] us beyond Seas to be tried for pretended Offences." For these reasons, the Supreme Court said during the Civil War that if tribunals are ever appropriate, it is up to Congress to define how and when they are to be used. The current administration has argued that this constitutional history and structure is not relevant because military necessity permitted it to act without explicit congressional authorization.

But charges aren't being brought against planners of the Sept. 11 attacks or other terrorist atrocities. Instead, the president is using these tribunals against minor offenders, where the claim of military necessity is weak. To boot, charges are being brought nearly two and a half years after Sept. 11, dramatically undermining the arguments for avoiding congressional delay. And if the administration prevails at the Supreme Court, the rules for the military commissions—from the definition of substantive offenses to the procedural rules and review guidelines—will be slanted even more in favor of the prosecution than they already are.

Times of crisis demand special responses. But when the crises are long in scope, without a definitive end, and when time permits national deliberation and decision-making, both constitutional and pragmatic values are best served by having our nation's representatives and judges consider that response—not resorting solely to executive decree. The conspiracy charges are the most dramatic step yet in the slide down a dangerous anticonstitutional spiral.

Neal Katyal teaches law at Georgetown University. He is chief counsel to the military defense lawyers in the Guantanamo case pending at the U.S. Supreme Court.

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