The Misuse of History: Conspiracy and the Guantánamo Military Commissions

Abstract

The Guantanmo military commissions, established to try suspected terrorists for violations of the law of war, have completed just seven cases in a decade of operation. All these cases included one or both of the charges “providing material support to terrorism” and “conspiracy,” even though experts widely agree that these are not recognized war crimes. Fighting to save these charges against critical appellate scrutiny, the government now argumes that these offenses can be prosecuted as part of a unique “American common law of war” regardless of whether they violate international law, and that past U.S. military commission practice provides historical support for their use. Focusing on the inchoate crime of conspiracy, this article argues that this logic is fatally flawed. First, past practices in criminal law are insufficient to establish a crime’s contemporary validity. Second, the very notion of an “American common law” contradicts the essential nature of the law of war, which has always been understood to comprise a subset of the larger body of international law. Third, careful scrutiny of the historical record shows that it does not support the conclusion that commissions prosecuted inchoate conspiracies as a war crime. Finally, judicial adoption of the government’s “American common law” argument will put U.S. military personnel at significant risk in future conflicts as other states will assert a counterpart authority to try Americans for violation of their own national laws.