Where is al-Bahlul??

I’d previously only been tweeting about this, but it seems worth a proper post to flag the remarkable fact that it’s now been well over seven months (!) since the en banc D.C. Circuit heard oral argument in Al-Bahlul v. United States–the military commission appeal that raises the ability of the Guantánamo commissions to try defendants for pre-MCA conduct that was not recognized as an international war crime–such as “conspiracy” and “providing material support to terrorism.” Whatever one thinks of the merits of this issue (about which plenty has been said, some of it by me), I suspect most would agree that the stakes are quite high, especially for the government (which sought the en banc rehearing–and would lose the ability to try an overwhelming majority, if not virtually all, of the other military commission cases under consideration if the en banc D.C. Circuit goes in the same direction as the three-judge panel in Hamdan II). None of this is news–or was back in September, when the en banc Court of Appeals heard oral argument. And although there are certainly cases that take longer to decide, seven-plus months on the issues presented in Al-Bahlul strikes me as, for lack of a better word, inexplicable. And it is only the more so when one considers the extent to which the future of the commissions hangs in the balance. Nor is this hard-to-fathom delay in a military commission appeal new; as I’ve written before, inexplicable delays have beset the Hamdan and Al-Bahlul appeals from the get-go. Both of these cases produced convictions in 2008; the Court of Military Commission Review took almost three years to resolve the defendants’ direct post-conviction appeals, including a never-explained year-long delay created by that court’s wholly unnecessary decision to hear the matter en banc; and it’s now been almost three years since even those decisions were handed down–with one more layer of review (the Supreme Court) still in the hypothetical offing. There could very well be a good reason why it’s taking the D.C. Circuit so long. I’m skeptical, especially given how the oral argument went, but that’s entirely because I don’t know anything. Here are two points I do feel confident about: (1) if these cases were tried in civilian court all along, they would’ve been over years ago; and (2) this timeline underscores just how out-of-touch arguments in favor of abstention–that district courts should hold off on resolving jurisdictional challenges to military commissions until after the commission process has run its course–are with reality. Had the district court not abstained from Hamdan’s jurisdictional challenge to the commissions back in 2008, we all could’ve been spared an awful lot of trouble–and the D.C. Circuit would’ve decided the issue it’s still sitting on in Al-Bahlul before President Bush ever left office. Was anyone better off because the district court did abstain? 

Filed under:
About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).