What follows is a very quick-and-dirty summary of this morning’s ruling by the en banc D.C. Circuit in Al-Bahlul v. United States. There are five opinions, but a couple of clear holdings:

  1. Judge Henderson holds, first and foremost, that Bahlul has forfeited his ex post facto challenge to his conviction, which means that the ex post facto challenge to his conspiracy conviction is only reviewed under the exceedingly deferential “plain error” standard. This holding is 4-3 (Henderson, joined by Chief Judge Garland and Judges Tatel and Griffith). Judges Rogers, Brown, and Kavanaugh all disagree that plain error is the appropriate standard (although they diverge about what that means in practice).
  2. Applying plain-error review, Judge Henderson nevertheless overrules Hamdan II — which had held that the MCA does not authorize trials based upon pre-MCA conduct for offenses that were not recognized as international war crimes at the time.
  3. Because of the holding that the MCA does authorize such retroactive trials, Judge Henderson next turns to the constitutional argument, holding that Bahlul’s conspiracy conviction is not “plainly erroneous” because (1) the conduct for which he was convicted was already criminalized by a civilian criminal statute (and it’s not “plain” that this is insufficient to satisfy ex post facto concerns); and (2) it was not “plain” that conspiracy wasn’t triable by a commission under Article 21 (the Quirin precedent) at the time of Bahlul’s conduct.
  4. Judge Henderson then holds that Bahlul’s material support and solicitation convictions were plainly erroneous, because it was “plain” that neither offense was recognized as triable by a military commission at the time of Bahlul’s conduct, and because the en banc majority “assumes without deciding” that the Ex Post Facto Clause applies to Bahlul (a result in which at least five judges–Tatel, Garland, Rogers, Griffith, and Kavanaugh–clearly concur).
  5. Finally, Judge Henderson sends all of the remaining issues raised in Bahlul’s appeal–including his Article I, Article III, First Amendment, and equal protection challenges–back to the original panel (Henderson, Rogers, & Tatel, JJ.).
  6. Judge Henderson wrote a five-page solo concurrence explaining why, had the government not conceded that the Ex Post Facto Clause applied, she would have held to the contrary.
  7. Judge Rogers wrote a 31-page opinion concurring in the judgment in part and dissenting, in which she argued that (1) plain error should not apply; and (2) on the merits of the ex post facto issue, Bahlul’s conspiracy conviction cannot be sustained. (Judge Rogers appears to be the only vote in favor of reversing Bahlul’s conspiracy conviction.)
  8. Judge Brown wrote a 25-page opinion concurring in the judgment in part and dissenting in part, in which she argued that (1) plain error should not apply; and (2) on the merits, Bahlul’s conspiracy conviction should be upheld because of Congress’s broad power to define and punish offenses against the law of nations.
  9. Finally, Judge Kavanaugh wrote a 36-page opinion concurring in the judgment in part and dissenting in part, in which he argued that (1) plain error should not apply; and (2) on the merits, Bahlul’s conspiracy conviction should be upheld, because Article 21 authorized military commissions to try violations of the U.S. “common law of war” such as conspiracy. (Note that Judge Kavanaugh was the author of the panel majority opinion in Hamdan II, which rejected this reading of Article 21.) Alone among the judges, Judge Kavanaugh’s opinion also engages with some of Bahlul’s alternative challenges to his conviction–including the Article I and Article III objections. More on this later…

In other words, it was 4-3 on plain error; 6-1 on the merits to affirm Bahlul’s conspiracy conviction (with two of the plain error dissenters–Brown and Kavanaugh–nevertheless voting to affirm on conspiracy); and 7-0 on the merits to vacate Bahlul’s material support and solicitation convictions.

Here’s how Judge Kavanaugh explained it:

Of the seven judges on the en banc Court for this case, five judges (all but Judge Henderson and Judge Brown) agree in light of Boumediene v. Bush that the Ex Post Facto Clause applies at Guantanamo. Indeed, the Government concedes as much. Given the Government’s concession, all seven judges on the en banc Court (including Judge Henderson and Judge Brown) therefore apply the Ex Post Facto Clause to analyze the offenses that were charged against Bahlul under the Military Commissions Act of 2006. In doing so, all seven judges reach the same bottom-line result that the Court reached in Hamdan II (here, by virtue of the Ex Post Facto Clause; there, by virtue of the 2006 Act as informed by the Ex Post Facto Clause): A military commission may not try the offense of material support for terrorism for conduct that occurred before enactment of the 2006 Act. All seven judges likewise conclude that a military commission may not try the offense of solicitation for conduct that occurred before enactment of the 2006 Act. The Court is unanimous that those two offenses were not war crimes triable by military commission at the time of Bahlul’s conduct in 2001. Therefore, all seven judges agree that we must vacate Bahlul’s material support for terrorism and solicitation convictions as ex post facto violations.

As to conspiracy, six of the seven judges (all but Judge Rogers) uphold Bahlul’s conspiracy conviction against his ex post facto objection. Two of us (Judge Brown and I) would do so by employing de novo review and concluding that conspiracy, unlike material support for terrorism and solicitation, has long been an offense triable by military commission, including at the time of Bahlul’s conduct in 2001. The majority opinion likewise upholds Bahlul’s
conspiracy conviction but does so by employing plain error review. The majority opinion believes that Bahlul forfeited his ex post facto objection by not raising the objection at trial.

So what does all of this mean?

Here are three quick suggestions:

  1. It is now clear that the commissions can’t try pre-MCA material support or solicitation offenses (and so the result in Hamdan II remains in place).
  2. It is now completely unclear whether commissions can try pre-MCA conspiracy offenses–and there is no binding circuit precedent, given that the en banc court wiped out Hamdan II. Instead, it will fall to the three-judge panel that gets the next pre-MCA conspiracy case, presumably on de novo review, to resolve the ex post facto question.
  3. It is completely unclear whether Bahlul’s other challenges to his conviction, which now go back to the original panel, will be reviewed de novo or under the plain error standard. Of course, if the three-judge panel holds that one of these other challenges is meritorious, that might itself pretermit future prosecutions for pre-MCA conspiracy. But that’s a big “if”–and it would depend upon the specific reasoning…

In other words, the en banc D.C. Circuit just made everything significantly more complicated with respect to the commissions going forward–giving the government a hypertechnical issue-specific victory; leaving the merits of Bahlul’s remaining challenges to his conviction for the original three-judge panel; ducking the larger constitutional question of whether pre-MCA conspiracy really can be tried by a military commission; and wiping the doctrinal slate clean so that future panels in (presumably different) cases will have to reach that question all over again… As Judge Brown (correctly) laments at the end of her concurrence:

Thus, it may be many years before the government receives a definitive answer on whether it can charge the September 11 perpetrators with conspiracy, or whether Congress has the power to make such an offense triable by military commission even prospectively. The ability to charge conspiracy is an important prosecutorial tool in the war on terror, where it can often be difficult for the government to procure evidence directly connecting leaders of militant groups with specific terror attacks.

Whether or not you agree with the result of today’s decision, the D.C. Circuit has done no one any favors–not the government, which will still be terribly uncertain as to which cases it can and can’t bring; not the defendants, for obvious reasons; not the public; and, most importantly, not the commissions–the fragility of which is only exacerbated by today’s decision, which unanimously throws out material support and solicitation, and creates a huge headache with respect to conspiracy. In other words, for commissions the legal legitimacy of which was already in limbo, today’s decision only makes it worse insofar as it opens the door to additional years’ worth of litigation over the basic question of which offenses the commissions can try.

And finally, because it needs to be said, whether in fact “plain error” should have applied to Bahlul’s case may strike at least some Justices as an eminently cert.-worthy issue.