Although it’s a bit further into the weeds than the issues Marty and I flagged in yesterday’s lengthy analysis of the en banc D.C. Circuit’s decision in al Bahlul v. United States, one of the other questions al Bahlul raises, but does not expressly answer, is how much is left of Judge Kavanaugh’s panel opinion in Hamdan v. United States (“Hamdan II“), 696 F.3d 1238 (D.C. Cir. 2012), which had rejected–on statutory grounds–the ability of the military commissions to try any pre-MCA offenses not recognized as international war crimes at the time of the relevant conduct. In fact, Hamdan II included a series of holdings of significance to both current and future military commission cases. And in the post that follows, I endeavor to explain why only one of those holdings was actually overruled by the en banc Court of Appeals on Monday–and why the rest of Hamdan II therefore remains the law of the D.C. Circuit.

I.  Hamdan II

Let’s start by detailing the four relevant holdings from Hamdan II:

  1. “[T]he [Military Commissions Act of 2006] did not authorize retroactive prosecution for conduct that was committed before the Act’s enactment and was not prohibited by U.S. law at the time the conduct occurred.” Hamdan II, 696 F.3d at 1247.
  2. “The ‘law of war’ referenced in 10 U.S.C. § 821 [the only statute that did authorize military commission trials at the time of Hamdan’s conduct] is the international law of war.” Id. at 1248; see also id. at 1248 n.8 (“Congress here explicitly referred to international law and explicitly incorporated international norms into domestic U.S. law in 10 U.S.C. § 821 by means of the express cross-reference to the ‘law of war.'”).
  3. “[I]mposing liability on the basis of a violation of ‘international law’ or the ‘law of nations’ or the ‘law of war’ generally must be based on norms firmly grounded in international law.” Id. at 1250 n.10 (citing Hamdan v. Rumsfeld, 548 U.S. 557, 602-03 & n.34, 605 (2006); and Sosa v. Alvarez-Machain, 542 U.S. 692, 724-38 (2004)).
  4. “Material support for terrorism was not a recognized violation of the international law of war as of 2001 (or even today, for that matter).” Id. at 1251.

The above list may not be exhaustive (I’ve left out, e.g., the panel’s holding that Hamdan’s appeal was not moot). But I think it’s safe to say that these were the four most significant holdings for the commissions coming out of the panel’s October 2012 decision.

II.  al Bahlul and Hamdan II

I won’t bore readers with a recitation of what the en banc majority held on Monday. (See instead my initial post, and Marty and my take from yesterday.) Instead, here’s what the majority opinion held specifically with respect to Hamdan II:

  1. “Because we conclude . . . that the 2006 MCA is unambiguous in its intent to authorize retroactive prosecution for the crimes enumerated in the statute—regardless of their pre-existing law-of-war status—we now overrule Hamdan II’s statutory holding.” al Bahlul v. United States, No. 11-1324, slip op. at 15 (D.C. Cir. July 14, 2014) (en banc).

That’s it. Although Judge Henderson goes through a long discussion (at pp. 36-40) of Hamdan II‘s second holding (that 10 U.S.C. § 821 only incorporates the international laws of war), she concludes that “we need not resolve de novo whether section 821 is limited to the international law of war.” Id. at 39 (bold emphasis added). Instead, the majority only holds under plain error review that it’s not plainly erroneous to read § 821 as also encompassing violations of the “U.S. common law of war.” See also id. at 44 (“We do not hold that these precedents conclusively establish conspiracy as an offense triable by military commission under section 821.”). In other words, the majority opinion for the en banc D.C. Circuit in al Bahlul leaves wholly undisturbed the second and third holdings from Hamdan II. And it also affirms the fourth holding a fortiori in concluding that it is “plain” that a material support conviction would violate the Ex Post Facto Clause. As a result, only Hamdan II‘s first (“retroactivity”) holding was overruled on Monday. In cases applying de novo review, future three-judge panels will be bound to follow Hamdan II‘s construction of § 821 to only authorize trials for international war crimes, along with its holding that the test for whether an offense so qualifies is whether imposing liability for such conduct is “based on norms firmly grounded in international law.”

III.  Judge Kavanaugh’s Solo Concurrence

To be sure, in his solo concurring opinion, Judge Kavanaugh attempts mightily to marginalize his own majority opinion in Hamdan II. Here’s footnote 5 of Judge Kavanaugh’s al Bahlul concurrence (slip op. at 11):

A passage in this Court’s decision in Hamdan II – a passage beginning “Third,” in the third-to-last paragraph of the opinion – suggested that the phrase “law of war” in Section 821 encompassed offenses under the international law of war but did not cover other offenses that were rooted only in U.S. military commission precedents. That statement was not necessary to the result in Hamdan II because, as the opinion explained, material support for terrorism was not an offense under the international law of war or under U.S. military commission precedents. In any event, as the Deputy Solicitor General persuasively explained at oral argument, that statement in Hamdan II was underinclusive. Given the text and textually stated purpose of Section 821, and the relevant Supreme Court precedents, the “law of war” prong of Section 821 covers both offenses under the international law of war and offenses sufficiently rooted in U.S. military commission precedents.

Judge Kavanaugh’s argument here appears to be that Hamdan II also held that, even if § 821 didn’t require the offense to be an international war crime, there still was no precedent for trying material support before a military commission under the “U.S. common law of war.” If that’s true, then Judge Kavanaugh’s reasoning in footnote 5 of al Bahlul would surely be correct–Hamdan II‘s holding that § 821 only incorporates the international laws of war would have been dicta. But it’s just not true. Here’s the passage from Hamdan II to which Judge Kavanaugh was referring in footnote 5:

The Government latches on to a few isolated precedents from the Civil War era to prop up its assertion that material support for terrorism was a pre-existing war crime as of 2001 for purposes of 10 U.S.C. § 821. There are several independent reasons that those cases fail to support the Government’s argument. First, the Civil War cases did not involve any charges of material support for terrorism. Instead, several cases involve guerillas who were punished for taking up “arms” as “insurgents”—that is, for direct attacks rather than material support. Others were convicted of “joining, aiding and assisting a band of robbers and bandits”—in other words, what we would likely call aiding and abetting, not material support. In short, those precedents are at best murky guidance here. Second, those Civil War commissions were in part military tribunals governing certain territory—which are a separate form of military commission subject to a separate branch of law, and not the kind of law-of-war military commission at issue here. As others have suggested, their precedential value is therefore limited. Third, and perhaps most to the point, those cases do not establish that material support for terrorism was a war crime recognized under international law as of 1996 to 2001 when Hamdan committed his conduct, which is the relevant inquiry under 10 U.S.C. § 821. The Government contends that those Civil War precedents illuminate what it calls the “U.S. common law of war”—not the international law of war. But the statutory constraint here imposed by 10 U.S.C. § 821 is the international law of war.

Hamdan II, 696 F.3d at 1252 (bold emphases added). In other words, the second and third holdings from Hamdan II were not dicta at all–Judge Kavanaugh’s best protests to the contrary notwithstanding. And because those holdings were not dicta, it follows that nothing a single judge subsequently writes in a concurring opinion (even if he happened to be the author of the original panel decision) bears on their continuing force as the law of the D.C. Circuit. Instead, Hamdan II‘s second, third, and fourth holdings are still good law–and bind not just future panels of the D.C. Circuit, but the Court of Military Commission Review and the military commission trial judges, as well.