I want to thank my esteemed colleagues Steve Vladeck and Marty Lederman for their very illuminating discussion of the D.C. Circuit’s recent decision in al Bahlul. I was Mr. al Bahlul’s appointed defense counsel in his military commission (yes, the one who failed to preserve any of the issues for appeal at Mr. al Bahlul’s direction due to his boycott of the proceedings). Steve and Marty are right to be skeptical about the strength of the government’s case against Mr. al Bahlul. The bulk of the evidence presented at trial related to Mr. al Bahlul’s creation of media products for al Qaeda. There was no evidence that he was an operational terrorist.

Marty’s and Steve’s discussion of the opinions has rightly focused on the potential implications for other cases and the unresolved issues surrounding Mr. al Bahlul’s stand-alone conspiracy conviction that will be addressed by the original three judge panel of the court on remand. While these are important and fascinating issues, I would like to raise an issue that has not received any attention––what will happen to Mr. al Bahlul? At Mr. al Bahlul’s 2008 trial, he received a life sentence after being convicted of three offenses: material support, solicitation and conspiracy. Two of those convictions are now gone. The opinion thus concludes by remanding the case, “after panel consideration”, “to the CMCR [Court of Military Commission Review] to determine the effect, if any, of the two vacaturs on sentencing.”

Obviously, if the panel on remand vacates the conspiracy conviction as well, then the entire conviction and sentence will be vacated. This will result in Mr. al Bahlul’s reversion to ordinary detainee status. But what if the conspiracy conviction stands? In that case, I do not believe that the CMCR actually has the authority “to determine the effect, if any, of the two vacaturs on sentencing” as the DC Circuit suggests. Rather, in my view, the CMCR will be obligated to return the case to the Convening Authority for a potential rehearing on sentence. The Convening Authority will have a choice either to order a rehearing, or to simply approve a sentence of no punishment, which would also result in Mr. al Bahlul’s reversion from convicted prisoner to detainee. (Functionally, this latter option would be tantamount to approving a sentence of time-served, which, by that time, will likely be at least seven years, not including the nearly seven years Mr. al Bahlul spent as a detainee prior to his conviction.)

But couldn’t the CMCR simply recalculate the sentence? The answer lies in the scope of appellate authority given to the CMCR in the Military Commissions Act of 2006 (the statute under which Mr. al Bahlul was tried). This law, although modeled on the Uniform Code of Military Justice, differed in a number of respects from the procedures of the military justice system, including in the scope of appellate review. When some portion of a court-martial conviction is reversed on appeal, the service criminal court of appeal has a choice: determine an appropriate sentence itself, or order a rehearing on the sentence. This ability of military courts of appeal to reassess sentences after some of the convictions have been vacated is explained in U.S. v. Sales, 22 M.J. 305 (CMA 1986), and derives from the language of Article 66, UCMJ.

Article 66, UCMJ, reads” “the Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact…” Thus, according to the Discussion in the Manual for Courts-Martial accompanying R.C.M. 1203 “if a Court of Criminal Appeals sets aside any findings of guilty or the sentence, it may order an appropriate type of rehearing or reassess the sentence as appropriate.” (emphasis added)

In Sales, the Court of Military Appeals (the predecessor to the Court of the Appeals for the Armed Forces) explained that a resentencing hearing need only be ordered by a service court of criminal appeals “if it cannot be reasonably certain as to the severity of the sentence that would have resulted in the absence of the error at trial.” Id. at 307, n. 3.

Although the provision for appellate review in the 2009 MCA was amended to make it virtually identical to Article 66, the scope of review authorized in the 2006 MCA, Section 950f(d) was much more narrowly drawn:

SCOPE OF REVIEW.—In a case reviewed by the Court of Military Commission Review under this section, the Court may act only with respect to matters of law.

Under this provision, in reviewing convictions obtained under the 2006 MCA, the CMCR lacks the de novo fact-finding powers that the service courts of criminal appeal have, and which Congress seemingly gave to the CMCR in the 2009 MCA. Tellingly, there is no commentary in the 2007 Manual for Military Commissions suggesting that the CMCR has the power to reassess a sentence.  One interesting wrinkle to all this is that the 2009 MCA contains a provision in Section 1804 which says that charges preferred and commissions convened under the 2006 MCA shall be treated as if preferred or convened under the new law. But I am not sure that Congress can enlarge the jurisdiction of the appellate court in the middle of an ongoing case, particularly where the result is to take away a right that the accused had (the right to a rehearing on sentencing) under the prior statute. To the extent that the CMCR believes they have the option to reassess, the court would be wise not to exercise this option, thereby creating another appellate issue.

So what sentence might Mr. al Bahlul get if his conspiracy conviction is affirmed and the Convening Authority directs a rehearing on sentence? Potentially, he could still receive a life sentence for the stand alone crime of conspiracy. But if Mr. al Bahlul actually lets his lawyers represent him, I believe there is a strong possibility that a new panel could be persuaded to adjudge a much shorter sentence. Having seen the success of his appellate counsel in getting two of his three convictions reversed, perhaps Mr. al Bahlul will be more open to being represented by counsel in a future sentencing hearing.

David J. R. Frakt is a Lieutenant Colonel in the U.S. Air Force JAG Corps Reserve, and a former lead defense counsel with the Office of Military Commissions, Office of the Chief Defense Counsel. His views are his own and do not represent the U.S. Air Force or the Department of Defense.