If one thing was clear from this morning’s oral argument before the en banc D.C. Circuit in al-Bahlul v. United States, it was the consistent skepticism from at least five of the seven participating D.C. Circuit judges for the government’s argument on the merits, i.e., that it would not violate the Military Commissions Act of 2006 or the Ex Post Facto Clause to try a Guantánamo detainee for pre-2006 conspiracy or material support for terrorism. To illustrate the point, arguing for the Petitioner, Michel Paradis used only 12 of his 30 minutes (and fielded only two questions) in his opening argument, while Principal Deputy Solicitor General Ian Gershengorn went more than 12 minutes over his allotted half-hour in tackling questions from each of the judges except Henderson and Rogers. It’s always a fraught proposition to use oral argument as an indicator of the ultimate disposition, but here, we’ll just say that things don’t look too good for the government. Below the fold, we offer three more sustained observations about this morning’s proceedings…

Observation #1: Plain Error

One of the more sustained colloquies during the government’s argument this morning concerned whether plain error applies to some of Bahlul’s arguments insofar as he (arguably) failed to raise some of these challenges (including ex post facto) expressly before the military commission (which may in part have been related to the fact that he largely represented himself at trial). As Chief Judge Garland and Judge Griffith both pointed out, plain error is a bit of a sticky wicket here, for at least two different sets of reasons: First, it’s not clear it even applies given (1) the lack of an analogue to Rule 52 (which governs applicability of the plain error standard in civilian criminal cases) in the military commission context; (2) the possibility that ex post facto claims may not even be subject to plain error review because they affect “substantial rights”; and (3) the fact that the court below (here, the intermediate Court of Military Commission Review) reached the argument anyway militates against denying the defendant the opportunity to challenge that ruling de novo on appeal, even under Rule 52 itself.  Second, and more intriguingly, as Judge Griffith expressly observed, prevailing on plain error is actually not ideal for the government, since it would leave Hamdan II intact as the law of the D.C. Circuit –and leave the central question in this case unresolved. In other words, if Bahlul’s conviction is affirmed simply because he failed to raise the right objections at the right time, that would not settle the underlying retroactivity question, but merely allow for affirmance in Bahlul on hyper-narrow grounds.

In our view, the Court of Appeals’ focus on plain error is instructive, for it suggests a lack of consensus for the view that the government would prevail on a less deferential standard.  But it also appears that there was little support for actually holding that plain error review applies–and so no way to avoid reaching the merits de novo.

Observation #2: Distinguishing Between What’s Triable and What’s an International Law Violation

On the merits, perhaps the most interesting exchange came late in Deputy SG Gershengorn’s argument, in an exchange with Judge Brown. In attempting to explain why the commission could try conspiracy even though, as the government concedes, it’s not a recognized violation of the international laws of war, Gershengorn attempted to distinguish between “offenses that are triable by military commission under international law” (the language of Article 21 of the UCMJ) and offenses that are violations of international law. In other words, Gershengorn argued, it doesn’t matter whether conspiracy is a recognized international war crime so long as there are prior examples of conspiracy prosecutions by military commissions. Even if such a distinction could be read into Article 21, and even if there were such examples of law-of-war military commissions trying conspiracy as a standalone offense (a point very much in dispute), it doesn’t actually solve several of the key problems raised in this case, including, most notably, the fair notice issue identified by Judge Kavanaugh in footnote 10 of his opinion in Hamdan II. It also fails to address the serious Article III problems that Steve’s amicus brief on behalf of NIMJ raised. So a very thoughtful argument, but one that doesn’t actually accomplish all that much…

Observation #3: So Why’d They Grant En Banc?

Given the above, we return to the question Jen alluded to in her preview and Steve raised last night over at Lawfare–why, then, did the D.C. Circuit go en banc? As we both argued, the court may have been motivated by a disagreement with Judge Kavanaugh’s convoluted attempt at statutory construction — namely his argument in Hamdan II that the MCA itself incorporates an anti-retroactivity principle and therefore does not apply to offenses not recognized as war crimes at the time of the MCA’s enactment. Indeed, Chief Judge Garland and Judges Tatel and Griffith all expressed open hostility to that reading of the MCA at various points during the argument, suggesting that they will reach the constitutional question–i.e., whether the MCA violates the Ex Post Facto Clause to the extent it authorizes prosecutions for pre-2006 conspiracy. When Deputy SG Gershengorn was asked if anything turns on resolving this case through statutory analysis or the Ex Post Facto Clause, he didn’t have much of an answer, other than returning to the same plain error issue discussed above. Judge Kavanaugh returned to this theme during Michel Paradis’ rebuttal, asking whether it makes a difference to hold that the MCA does not apply retroactively or is unconstitutional as so applied–and Paradis suggested that it did not, as we’ve both argued as well. Of course, a statutory holding leaves Congress free to try again–but that certainly doesn’t seem likely, anytime soon.

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Finally, there wasn’t a single question about the representation issues Jen flagged in her preview–suggesting that, for now, the Court of Appeals is satisfied that the case can go forward. How it goes forward is, of course, anyone’s guess. But if today’s argument is any indication, it does not bode well for the government.