On Monday, September 30, the D.C. Circuit, sitting en banc, will hear argument in al Bahlul v. United States – a case definitely worth watching.  The immediate question is whether the military commission conviction and life sentence of Guantánamo Bay detainee Ali Hamza Ahmad Suliman al Bahlul can stand: Specifically, did al Bahlul’s prosecution for conspiracy, material support for terrorism, and solicitation under the Military Commissions Act of 2006 (2006 MCA) based on actions that took place prior to the Act’s passage violate either the Ex Post Facto clause or the terms of the statute itself?

But the case’s outcome is much more important than for what it says about al Bahlul’s conviction alone.  At stake is both the validity of the military commission experiment to date and their future usefulness.  All seven of the military commission convictions to date include charges of conspiracy or material support; in five out of those seven, they were the only charges.  A ruling in al Bahlul’s favor would thus invalidate all or some part of every commission conviction so far.  Meanwhile, it would preclude future prosecutions for material support, conspiracy, and other inchoate offenses for conduct took place prior to October 2006 – a ruling that would winnow down the number of Guantánamo Bay detainees eligible for prosecution and further complicate the already complicated closure efforts.  The fact that Ian Gershengorn, the Principal Deputy Solicitor General, is arguing the case is a not-so-subtle indication of its importance.

In what follows, I offer some quick and dirty background and highlight the big issues to watch for at oral argument.  As I argue in more detail here, I predict that the government will lose – as it should.


By the time al Bahlul’s appeal reached the D.C. Circuit, a separate D.C. Circuit panel had already ruled on the key issues presented by al Bahlul’s case.  In October 2012, a panel of the D.C. Circuit – in an opinion authored by Judge Kavanaugh – vacated the conviction of material support for terrorism of Salim Hamdan.  In what is commonly known as Hamdan II (to distinguish it from the 2006 Supreme Court ruling on Hamdan’s first go-around with commissions), the D.C. Circuit panel concluded that, prior to the 2006 statute, military commission jurisdiction was limited to violations of internationally recognized war crimes; that providing material support to terrorism was not an internationally recognized war crime; and that Hamdan’s military conviction was therefore unlawful.

Central to the court’s ruling were two key provisions: a provision of the Uniform Code of Military Justice known as Article 21 and a purpose and effect provision in the 2006 MCA.

Article 21: Prior to the 2006 MCA, the only statute arguably vesting military commission with relevant jurisdiction was 10 U.S.C. § 821 (Article 21), which indirectly referred to commission jurisdiction over “offenses that by statute or by law of war may be tried by military commission.”  The Hamdan II court made two key moves in its interpretation of Article 21:  It first concluded that Article 21 set the outer limits of relevant commission jurisdiction prior to the 2006 MCA.  It then surveyed Supreme Court opinions, the Lieber Code (which is largely credited as laying the foundation for the modern rules of war), and George W. Bush-era OLC opinions to conclude that the term “law of war” in Article 21 referred to the “international laws of war.”

Hamdan II thus held that pre-MCA commissions could prosecute internationally recognized war crimes only (plus spying and aiding the enemy thanks to separate statutory provisions establishing commission jurisdiction for those specific crimes).  Given that even the government conceded that material support for terrorism was not an internationally recognized law of war offense, it was not triable by military commissions prior to the enactment of the 2006 MCA.

The MCA’s Purpose and Effect Provision:  In the 2006 MCA, Congress for the first time listed and defined a number of offenses triable by military commission – including ‘material support for terrorism’ and ‘conspiracy.’   In a separate provision, it asserted that these offense “codif[ied] offenses that have traditionally been triable by military commission.”  It added that “[b]ecause these provisions . . . are declarative of existing law,” they could be applied retroactively.   (These same provisions have been included almost verbatim in the Military Commissions Act of 2009).

Hamdan II interpreted this provision as incorporating ex post facto principles into the terms of the statute itself and thereby avoided the constitutional issues that would otherwise have arisen directly under the Ex Post Facto Clause.   Specifically, it held that Congress intended to both adopt and abide by the rule against the retroactive prosecution of newly established crimes in the MCA—and so to the extent the MCA codified new offenses, those offenses could only apply prospectively.   There are all kinds of problems with this analysis, for reasons I and others have discussed at length. And it may have a lot to say about why the D.C. Circuit granted the government’s petition for rehearing en banc. But the key point for now is that it provided a basis for vacating the conviction while avoiding the bigger question of whether and to what extent the Constitution’s Ex Post Facto Clause applies to Guantánamo.

When al Bahlul’s case came up for review, the government thus found itself bound by the earlier ruling in Hamdan II (given that one panel of the court cannot overturn another).   The government conceded that conspiracy and solicitation were, like material support for terrorism, not internationally-recognized law of offenses, and that, under the rationale of Hamdan II, al Bahlul’s conviction should be overturned.   But the government also expressed strong disagreement with the Hamdan II ruling and subsequently petitioned for en banc review.   To the surprise of many, en banc review was granted, with the hearing set for Monday.

Three Key Issues to Watch For

(1) Can the appeal go forward?

Before even reaching the merits, the court needs to decide whether it is even authorized to consider the appeal.   In April 2013, al Bahlul wrote a handwritten letter to the Court saying he did authorize and wished to withdraw the appeal.  Al Bahlul’s lawyers claim that they have since received verbal assurances from al Bahlul he does in fact wants the case to proceed, but the D.C. Circuit has ordered al Bahlul’s attorneys to obtain a written letter to that effect.  While al Bahlul’s attorneys have made two trips to Guantánamo in the hopes of getting such a letter, al Bahlul has refused to meet with him both times.   And although al Bahlul’s attorneys claim that an Assistant Staff Judge Advocate heard al Bahlul confirm his desire to continue the appeal, they have not produced any affidavit or other confirming evidence of that fact.

This is not good news for the government.   If the court concludes it cannot hear the appeal, then al Bahlul’s conviction stands.  But so does the panel ruling in Hamdan II, which is precisely what the government hoped to overturn here.

All that said, case law requires a waiver of appeal rights to be “knowing, intelligent, and voluntary.” Given counsel’s representation that al Bahlul has in fact explicitly authorized the appeal to continue, it would be a stretch for the court to conclude that the high standard for waiver is met.  My prediction: The court will ultimately conclude it can hear the case – and will quickly move to the merits.

(2) What to make of Article 21 and the domestic “common” law of war?

At the heart of the case is a dispute over the meaning of Article 21 and its reference to the “laws of war.”   As to be expected, al Bahlul defends Hamdan II’s conclusion that Article 21 sets the outer bounds of commission jurisdiction, and that such jurisdiction is limited to the “international” laws of war.  The government, however, contests both steps in this argument.

The government makes a number of arguments in support of its claims.   Its most compelling one – and an area where I expect to see some questioning — is that Article 21 operates as a savings clause, preserving rather than restricting traditional military commission jurisdiction.   After all, the language of Article 21, which states that courts-martial “do not deprive” military commissions of jurisdiction “over offenders and offenses that by statute of by the law of war may be tried by military commission,” reads as a savings clause, without setting clear limits on what military commissions can do.

The problem for the government, however, is that – as Hamdan II concluded – the Supreme Court has twice interpreted Article 21 as tying military commission jurisdiction to the international laws of war.  To prevail, the government will have to convince the D.C. Circuit that the Supreme Court was simply not considering the situation presented by al Bahlul’s case – whether jurisdiction also extends to other cases traditionally triable by military commission jurisdiction that are not internationally-recognized war crimes – and that this is therefore an open question.

But even if the government can overcome that hurdle, and even if it can convince the D.C. Circuit that some number of its historical examples are on point (an argument that has been strongly contested here, here, and here), there remains the question of fair notice.   As a plurality stated in Hamdan I, while the “common law of war may render triable by military commission certain offenses not defined by statute, the precedent for doing so with respect to a particular offense must be plain and unambiguous.”  (And, of course, here the Supreme Court was analyzing to the “international” common law of war, not the so-called “domestic” common law of war.)

The government, however, has not cited a single military commissions prosecution in the last six decades based on any of the offenses for which al Bahlul was charged.  In fact the precedent, and its relevance, is so ambiguous that the government did not even rely on the purportedly self-evident domestic common law of war until Hamdan’s appeal was before the D.C. Circuit in Hamdan II, and – in an about-face – it decided it could no longer defend material support for terrorism as an international law of war offense.  To convince that court that this is the kind of plain and unambiguous precedent that would justify imposing criminal liability is a hurdle, to say the least.

(3) Does the Ex Post Facto Clause apply, and how?

In granting rehearing en banc, the Court of Appeals explicitly asked the parties to brief whether the Ex Post Facto clause applies to the detainees at Guantánamo – thereby signaling that the en banc grant may be motivated by disagreement with Hamdan II’s contorted statutory analysis, and an interest in reaching the Ex Post Facto Clause question directly.

Given that the government and al Bahlul are in agreement that the Ex Post Facto Clause applies, the key question is how. The government makes a push for a “flexible” approach to the Ex Post Facto Clause that focuses on whether the Clause’s overarching concerns are satisfied.  Under the government’s theory, the fact that al Bahlul was engaged in non-innocent conduct means that there is no Ex Post Facto problem.  But such an approach would effectively neuter the Ex Post Facto Clause, granting military prosecutors authority to prosecute an open-ended range of conduct, so long as analogous conduct was deemed criminal somewhere at the time it was engaged in.  As al Bahlul has argued, such an approach amounts to the much frowned upon crime by analogy.

The government’s much better argument is that there is no Ex Post Facto problem because al Bahlul’s conduct was criminalized under the domestic common law of war at the time it was committed.  But I repeat: given the importance of unambiguous precedent and fair notice, this is a difficult case to make.   Not to mention the separate potential Article III problems, which are discussed in length here.

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Like many others who have been watching this case closely, I put my bets on al Bahlul.  Just as a matter of nose counting, it is difficult to see how the government gets the four votes it needs.   (Newly appointed Sri Srinivasan is sitting this one out, bringing the number of judges down to seven.)   After all, Judge Kavanaugh authored the Hamdan II opinion the government wants overturned, and he is broadly considered part of the more conservative (i.e., government-friendly) wing of the court.  But the D.C. Circuit is often unpredictable, and Monday will be interesting.  Stay tuned for a post-hearing reprise . . .