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Hung Up on Words: A Conduct-Based Solution to the Problem of Conspiracy in Military Commissions

Posted by on Wednesday, October 14, 2015 in Notes, Volume 68, Volume 68, Number 5.

Hung Up on Words: A Conduct-Based Solution to the Problem of Conspiracy in Military Commissions


In the wake of the 9/11 attacks, the United States established military commissions to try foreign nationals for violations of the law of war. These commissions soon came under a number of constitutional challenges, prominent among them being Ali Al Bahlul’s claims that the Military Commissions Act’s (“MCA”) criminalization of conspiracy violates Article III of the Constitution and its retroactive application violates the Ex Post Facto Clause. To counter Bahlul’s claims, the government has relied on the argument that the “law of war” referenced in Article 21 of the Uniform Code of Military Justice (“UCMJ”) is not limited to international law, but also includes domestic American precedent, which includes military-commission convictions for conspiracy to violate the law of war.

This Note offers a different argument for the constitutionality of the MCA’s criminalization of conspiracy. Even if, as Bahlul claims, the “law of war” in Article 21 is limited to international law, the MCA’s criminalization of conspiracy does not violate the Ex Post Facto Clause. An examination of the conduct underlying the widely accepted concept of Joint Criminal Enterprise and Article 25 of the Rome Statute of the International Criminal Court shows that international law had already criminalized conspiracy in the latter half of the twentieth century, so long as the object of the conspiracy was carried out.

Accordingly, if the MCA only criminalizes completed conspiracies—that is, conspiracies that were actually carried out, as opposed to those than never go beyond their inchoate stages—it accords with international law and does not violate the Ex Post Facto Clause. The MCA’s definition of conspiracy is unique in all of American law in that it presupposes the existence of victims of the conspiracy. Because there cannot be victims of an inchoate conspiracy, this unique textual provision shows that Congress specifically defined MCA conspiracy to only criminalize completed conspiracies, in accord with the international law of war.

Resolving the Ex Post Facto issue in the manner suggested by this Note has an additional benefit: it obviates the need to make a permanent constitutional ruling on the Article III challenge. Bahlul argues that granting military commissions jurisdiction over a crime that is not a violation of the international law of war violates the Article III requirement that the judicial power of the United States be vested in Article III courts. If the MCA’s definition of conspiracy accurately reflects the international law of war under an Ex Post Facto analysis, then it necessarily falls within the exception to Article III that permits military commissions to exercise jurisdiction over violations of the international law of war. Thus, both issues can be resolved on statutory grounds based on the MCA’s definition of conspiracy, rather than making a constitutional ruling under Article III that will permanently constrain both political branches of the government in their efforts to combat a new and non-traditional threat under a legal regime that is still itself evolving to account for the actions of non-state actors in the international arena.


Doctor of Jurisprudence, May 2016, Vanderbilt University Law School. A.B. Philosophy, 2010, Harvard University. Many thanks to all of my peers and colleagues on Vanderbilt Law Review, especially Alex Ellman, whose feedback early on was essential to the success of this endeavor. I am also indebted to Professor Mike Newton for his assistance in developing the topic and tutelage in refining my argument. Finally, I wish to extend my gratitude to BG Mark Martins, USA, for providing me an unparalleled opportunity to experience military commissions firsthand.