Judgement Day: Prosecuting Jihadist Terrorism as a Criminal Enterprise Under the Military Commissions Act   [open pdf - 14MB]

From the thesis abstract: "What if the Coalition captures Osama bin Laden? What if the United States charges him with the capital crime of terrorism under the Military Commissions Act of 2006 (MCA)? What if the United States prosecutes bin Laden for the September 11, 2001 terrorist attacks, as the head of Al-Qaeda's criminal enterprise? This dissertation argues that the United States should prosecute Osama bin Laden for the terrorist attacks of 9/11, as if he had crashed the four hijacked planes himself. As head of Al-Qaeda, Osama bin Laden can and should be held legally responsible for the capital crime of terrorism, under the legal theory that Al-Qaeda is a criminal enterprise. For decades, American criminal enterprise prosecutions have targeted organized crime, while international tribunals have prosecuted mass atrocities of size and structure similar to 9/11. Part II delves into the MCA's unique jurisdictional and substantive requirements to prosecute a terrorism charge. Al-Qaeda's 9/11 attacks seem to fit this definition in form and substance. Part II closes by exploring jihadist symbolism as an aggravating factor inherent to the merits and sentencing of a terrorism case like 9/11. Next, Part III compares and contrasts the American criminal enterprise model, an association-in-fact, with the international criminal enterprise model, a mass atrocity. Part III reconciles these enterprise models in a MCA context and applies them to 9/11. Part III closes by proposing that the Secretary of Defense adopt a hybrid approach to the use of criminal enterprise in the Manual for Military Commissions (MMC), which would unify the current American association-in-fact model and the international mass atrocity model, to fit the dual nature of terrorism as a domestic and international offense. Part IV considers potential defense objections to criminal enterprise liability for the MCA crime of terrorism."

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