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Is conspiracy a war crime?

The White House urges Congress to say yes, because it makes terror convictions easier. The high court is split.

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Analysts say it is unclear how Kennedy might vote in a future case.

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"What does Kennedy think about this? We'll be asking that a lot," says Diane Amann, a law of war expert at the University of California, Davis, School of Law. But she adds, "The fact that Kennedy held back – if I were the government I would not take comfort in that fact."

In a dissenting opinion in the Hamdan case, Justices Clarence Thomas, Antonin Scalia, and Samuel Alito said the law of war is flexible enough to permit military commissions to hear conspiracy cases.

"The plurality's inflexible approach has dangerous implications for the Executive's ability to discharge his duties as Commander in Chief in future cases," Justice Thomas wrote.

The Bush administration agrees with Thomas's expansive view of presidential power. "We believe that the dissenting opinion in Hamdan was correct in its analysis and that the plurality's view on this particular question is not sustainable," Acting Assistant Attorney General Steven Bradbury told a Senate Judiciary Committee hearing on Aug. 2.

In the same hearing, Sen. Dianne Feinstein (D) of California asked the top legal officials for each of the four armed services whether Congress should designate conspiracy as a war crime for use in military commission trials at Guantánamo. Three said yes, one said he would prefer a charge of providing material support to terrorists.

"If the Congress is just going to try to add conspiracy onto the existing military commissions, that could be problematic," says Michael Scharf, director of the Frederick K. Cox International Law Center at Case Western Reserve University School of Law. "I think they are better off leaving conspiracy out of it."

Professor Scharf and other international law experts say that while conspiracy charges are an accepted part of the legal system in the United States and Britain, that legal approach has been rejected by most other countries – including international war-crimes tribunals.

Full rights for mafia, not detainees

In addition, analysts say that when federal prosecutors used conspiracy charges to help convict organized crime figures in the US, the alleged mafia members were afforded all the legal protections of the US court system. In contrast, military commissions don't provide the same range of trial protections.

One alternative to conspiracy, analysts say, is to charge suspects with a form of aiding and abetting. That would bring the military commission process within international standards. But it would also make it harder for prosecutors.

"From a prosecutorial standpoint, prosecuting someone for aiding and abetting requires a heck of a lot more proof than prosecuting them for conspiracy," says Professor Amann. Military prosecutors may not have enough evidence to win an aiding and abetting case, she says.

Scharf says military prosecutors still might win convictions. "My hunch is that everybody they are interested in trying, they can get for either committing the crime [a specific atrocity] or aiding and abetting. They don't really need the conspiracy," he says.

The bottom line, these analysts say, is that conspiracy charges would make it much easier to win convictions, but in the eyes of most of the world such trials would be viewed with suspicion and distrust rather than as beacons of international justice.

"Most people around the world look at the Hamdan decision as a return to the rule of law," Professor Fletcher says. "If Congress defies the Supreme Court and says: 'No, we think we can get around this,' it will hurt the country enormously."