This past Monday marked nine months since the en banc oral argument in al-Bahlul v. United States, in which the D.C. Circuit is considering whether military commissions at Guantánamo may lawfully try offenses that were (1) codified by Congress in the Military Commissions Act of 2006 (MCA); (2) not recognized as international war crimes prior to the MCA; and (3) committed before the MCA was enacted. The potential stakes of al-Bahlul are enormous: With one exception, the charges in all of the Guantánamo cases are based upon pre-MCA conduct. And in all but the 9/11 and Nashiri trials (which have their own baggage), the central charges are conspiracy and/or providing material support to terrorism–offenses that even the government concedes were not recognized as international war crimes at the time of their commission. Thus, if the en banc D.C. Circuit rules that these cases cannot go forward (whether because, like the panel in Hamdan II, it holds that the MCA doesn’t authorize such trials, or because it holds that the MCA violates the Ex Post Facto Clause insofar as it does), the availability of the commissions to try any additional Guantánamo cases will be virtually abnegated.
Of course, the en banc D.C. Circuit could rule for the government. The two most likely grounds for doing so are either (1) that Bahlul “waived” some of these arguments by failing to raise them at various points in the lower courts; or (2) that the government’s substantive theory–that there is no ex post facto problem because conspiracy was recognized at the time of Bahlul’s offense as a violation of the “U.S. common law of war”–withstands scrutiny. But what’s often missed in discussions of Bahlul is the extent to which neither of these holdings would resolve anything meaningful.
A waiver argument would thereby leave the Hamdan II panel decision intact, and prevent the Court of Appeals from resolving, on the merits, when and under what circumstances the commissions can try pre-MCA conspiracy and/or material support. As such, one would think that a holding based upon waiver would not have taken nine months to hand down (and, in any event, is not what the government actually wants)… And the government’s substantive argument would only provoke a range of additional substantive issues, including (1) the Article III issue I’ve flagged previously; and (2) the First Amendment and equal protection challenges that the en banc D.C. Circuit specifically ordered the parties not to brief. Thus, if the en banc D.C. Circuit were inclined to rule in the government’s favor on the merits, one might have long-since expected an order requesting supplemental briefing (or sending the case back to the original three-judge panel to allow it to consider those issues)–since reversal would still be warranted unless the government also prevails on these points, as well.
All of this is a long way of saying that, nine months later, I still stand by my initial pre-argument prediction–that al-Bahlul is going to win, with the majority formed from judges who would resolve the case on statutory grounds (like Judge Kavanaugh in Hamdan II) and those who would hold that the MCA does apply retroactively, and thereby violates the Ex Post Facto Clause. Whatever the result, though, hopefully, we’ll find out soon. After all, the lack of legal certainty surrounding the commissions benefits no one–except perhaps bloggers.