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Is Conspiracy a War Crime?

Jess Bravin reports in the WSJ (subscription required):

The Obama administration on Monday pressed a federal appeals court to rule that the U.S. can prosecute foreigners before military commissions for conspiracy even though international law doesn't consider the offense a war crime.

Seeking a reversal of earlier court rulings that threw out convictions at the U.S. military base at Guantanamo Bay, Cuba, the government argued that under an "American common law of war" the military could try defendants for conspiracy.

The legal question is being considered by the full seven-member U.S. Court of Appeals for the District of Columbia Circuit, which is rehearing the issue at the administration's request after earlier appellate panels threw out terrorism-related convictions for conspiracy and material support for terrorism, finding they weren't war crimes when the culpable acts were committed.

The issue is pivotal to the future of the alternate justice system the U.S. has attempted to build at Guantanamo Bay since the Sept. 11, 2001, terror attacks. Nearly every detainee considered for prosecution before a military commission has been slated to face a conspiracy charge; for more than a dozen potential defendants, it is the only offense prosecutors planned to file.

The circuit court's earlier rulings erased the only convictions military commissions had produced through trial since the Sept. 11 attacks: those of Ali al-Bahlul, a former communications assistant to Osama bin Laden who was sentenced to life imprisonment after largely boycotting his trial, and bin Laden's former driver, Salim Hamdan, who was convicted of material support for terrorism in 2008 and released the next year after completing a brief sentence.

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