PROSECUTING AL QAEDA:
When Is A Member A Conspirator?

By JOANNE MARINER

Monday, Apr. 29, 2002

By releasing the Pentagon's regulations on military commissions, the Bush administration took a step toward alleviating the uncertainty that surrounds the fate of the Guantanamo detainees. Although the administration may still choose to release some or all of the detainees, or to try them in regular civilian courts, the issuance of the regulations suggests that at least some of the detainees will face military trials, whose procedural rules the regulations describe.

What little information is available was provided anonymously to the New York Times last week. Unnamed administration officials acknowledged that, in most cases, interrogations of the Guantanamo detainees have not yielded sufficient information to support prosecutions for war crimes. In the absence of evidence linking particular detainees to specific atrocities, the administration is now considering charging detainees with membership in Al Qaeda.

"It could be enough to show that they were part of [Al Qaeda] and furthered its aims," explained one administration official.

While the precise contours of the proposed approach are still unclear, the administration appears to be contemplating a loose form of conspiracy prosecution, for which Al Qaeda membership is the central element. Such a strategy has always tempted prosecutors who have little individualized evidence and thus, unsurprisingly, it has many historical precedents. It is time now to insist that the lessons learned from these past experiences - and the constitutional doctrines that codify them - are not ignored.

Organizational Enemies

This is not the first time in U.S. history that we have characterized entire organizations as criminal. In terms of legal strategy, the fights against fascism, communism and organized crime have been reflected in the criminal prosecution of the SS, the Communist Party, and the mafia, among other groups.

The historical comparisons are particularly compelling with regard to the first two groups, which the United States viewed as dangerous enemies. (It is worth noting, however, that the government's efforts to block Al Qaeda's funding sources owe much to its past experiences in attacking organized crime using the RICO statute.) As with terrorism now, the struggle against fascism, and later communism, was conceived of in manichean terms: good against evil, right against wrong, us against them.

The perceived clarity of such a picture leaves little room to acknowledge that the criminal organization at issue might have any legitimate aims or, similarly, that it might have any "innocent" members. Perhaps with the SS such an assumption was justified. But it seems obvious, in retrospect, that many Communist Party members did not share the organization's purported goal of overthrowing the U.S. government by force, and did nothing to further that goal.

Similarly, some members of Al Qaeda may have joined out of a desire to defend the Taliban's Islamic regime, without intending to kill civilians, to commit other war crimes, or to further Al Qaeda's terrorist agenda. If such persons are not implicated in a specific criminal offense, is proof of their Al Qaeda membership sufficient to a support a criminal conspiracy conviction?

Conspiracy, "Mere Membership," and Freedom of Association

But past experience demonstrates that the more threatening the group, the more likely it is that the line between mere membership and participation in an illegal conspiracy will be blurred.

The Nuremberg Precedent

The Nuremberg Charter, in Articles 9 and 10, provided for charges to be brought against criminal organizations. Of the six organizations that were so charged, the International Military Tribunal at Nuremberg found three of them to be criminal: the SS, the Gestapo, and the Leadership Corps of the Nazi Party.

The underlying idea behind finding an organization to be criminal was that membership in the organization would, in itself, be sufficient to justify criminal sanctions. Indeed, allied planners intended to rely on organizational charges to prosecute large numbers of people in the trials subsequent to the main Nuremberg prosecutions, people against whom there was no individualized evidence but plenty of documentary evidence showing membership. (For various reasons, including developments in the political context, this did not happen.)

The Nuremberg judges, and even its prosecutors, were aware of the due process concerns implicated in criminalizing membership. In the end, the tribunal's actual practice was much more conservative than the Charter would suggest, including a narrower interpretation of organizational liability. (Some later courts read the Nuremberg precedent as requiring personal knowledge and active participation as predicates for organizational guilt.) No Nuremberg defendant was convicted simply on the basis of organizational membership.

Justice Robert H. Jackson, the tribunal's chief prosecutor, acknowledged that the Charter's rules on organizational liability "would be easy to abuse," although on his return to the U.S. he supported the punishment of alleged communists on the basis of organizational liability. Telford Taylor, one of Jackson's deputy prosecutors, learned a clearer lesson. On his return home, he developed a specialty of defending individuals accused of Communist Party membership.

The Communist Menace

Believing itself deeply threatened by Communism, the federal government enacted a number of repressive laws targeting Communists, including, in 1940, the Alien Registration Act (known as the "Smith Act"). A key provision in the Act criminalized knowing membership in an organization that advocated the forcible overthrow of the government, and imposed a penalty of up to twenty years of imprisonment.

In 1951, in Dennis v. United States, the Supreme Court addressed the constitutionality of the Smith Act, upholding the conviction of eleven top Communist Party leaders under the law. But in later years, as the threat of Communism receded in importance, the court reconsidered its views. In a trio of cases decided in 1957 and 1961, the Supreme Court ruled that neither mere membership in the Party nor abstract advocacy of the overthrow of the United States government was sufficient to support a prosecution. (The cases in the trio were these: Noto v. United States, Scales v. United States, and Yates v. United States.)

Knowing Membership Enough?

As befits her unofficial role as the Bush administration's academic defender, Yale Professor Ruth Wedgwood recently set forth a vigorous defense of the administration's possible reliance on membership and conspiracy as a basis for prosecuting the Guantanamo detainees. In a letter to the New York Times, she asserted that "[j]oining Al Qaeda with knowledge of its purposes means that one has joined in a conspiracy to attack civilian targets and to make war illegally on the United States." In other words, proof of knowing membership alone would suffice to support a conviction.

It should be clear from the above discussion that Wedgwood's proposed approach is much more sweeping than current constitutional doctrine allows. Although the Supreme Court has been known to ignore constitutional strictures in times of extreme stress, the temptation to stretch the rules should be firmly rejected.

For the very reasons that make it so appealing to prosecutors, the doctrine of organizational liability is a dangerous tool. Rather than evoking unhappy memories of the McCarthy era, the United States should uphold the proud tradition of requiring individual guilt.


Joanne Mariner is a human rights attorney practicing in New York. Her previous columns about human rights issues, including columns on terrorism, Afghanistan, and other related topics, can be found in the archive of her pieces on this site.

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