History, Hamdan, and Happenstance: “Conspiracy by Two or More To Violate the Laws of War by Destroying Life or Property in Aid of the Enemy”
In June 2006, a plurality of the Supreme Court in Hamdan v. Rumsfeld determined that the Government failed to make a colorable case for the inclusion of conspiracy among those offenses cognizable by law-of-war military commission. The plurality’s reasoning was largely based on its survey of domestic law sources and precedents. That survey, however, was inaccurate and incomplete.