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Military Commissions After Guantánamo

This Wednesday morning at 9:30 (EDT), a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Tatel, JJ.) will hear oral argument in al Bahlul v. United States–a Guantánamo military commission appeal on remand from the July 14 decision of the en banc Court of Appeals. Readers who have been following these proceedings thus far will recall that the en banc court sent back to the original panel four of al Bahlul’s challenges to his conspiracy conviction: that “(1) the Congress exceeded its Article I, § 8 authority by defining crimes triable by military commission that are not offenses under the international law of war; (2) the Congress violated Article III by vesting military commissions with jurisdiction to try crimes that are not offenses under the international law of war; (3) his convictions violate the First Amendment; and (4) the 2006 MCA discriminates against aliens in violation of the equal protection component of the Due Process Clause.” [Readers may also recall that I’ve filed an amicus brief on behalf of the National Institute of Military Justice in support of al Bahlul, and so have a stake in the outcome.] But whether or not you’ve been following this case, or the commissions more generally, Wednesday’s oral argument will almost certainly mark a turning point for the commissions–and, as the post that follows explains, a referendum not just on the current proceedings at Guantánamo, but whether there’s any prospect for military commissions after Guantánamo, as well.

I.  How We Got Here

Just to remind folks of how we got here, al Bahlul was convicted by a military commission for three offenses created by Congress in the Military Commissions Act of 2006 (MCA), which was enacted in response to the Supreme Court’s decision in Hamdan v. Rumsfeld (Hamdan I): conspiracy, providing material support to terrorism, and solicitation. After an inexplicable (and interminable) delay stretching out over several years, al Bahlul’s conviction on all three counts was unanimously affirmed by the Court of Military Commission Review in September 2011. He then appealed to the D.C. Circuit, which was, at the same time, considering an appeal brought by Salim Hamdan–who was challenging his post-MCA conviction on a single “material support” charge. In October 2012, a three-judge D.C. Circuit panel reversed Hamdan’s conviction. As I explained back in July, the decision in “Hamdan II” included four holdings:

  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.

In light of these holdings, the government concededand the D.C. Circuit held–that Hamdan II also compelled reversal of al Bahlul’s convictions for conspiracy, material support, and solicitation. The government then successfully petitioned for rehearing en banc in al Bahlul, culminating in the court’s long and fractured July 14 ruling, which held that (1) the MCA was retroactive; and (2) al Bahlul had forfeited his ex post facto challenge to his conspiracy, material support, and solicitation convictions, meaning that they’d be reviewed only for “plain error.” On plain error review, the court rejected al Bahlul’s ex post facto challenge to his conspiracy conviction, but sustained it as to his material support and solicitation convictions. The court–over the dissents of Judges Kavanaugh and Brown–then returned the remaining issues noted above to the original three-judge panel, which is what’s set to be argued on Wednesday.

II.  The Stakes

As I explained back in July, one of the (many) ironies of the en banc court’s hyper-narrow decision was to raise this case’s stakes dramatically with regard to the future of military commissions. To understand why, we have to begin with al Bahlul’s central objection to his conspiracy conviction, i.e., that “conspiracy” as a standalone offense is not recognized as an international war crime (and wasn’t at the time of the conduct for which he was convicted), and is therefore beyond the constitutional authority of Congress to subject to trial by a military commission.

Initially, al Bahlul–like Hamdan, before him–pressed this challenge on its narrowest ground: that, whether or not Congress could subject non-international war crimes to military commissions in the abstract, it certainly couldn’t do so retroactively (everyone agrees that the MCA post-dates the conduct that gave rise to al Bahlul’s conviction). If al Bahlul (like Hamdan) had prevailed on his ex post facto challenge, such a result would have foreclosed the use of the commissions to try non-international war crimes committed before the MCA’s enactment on October 17, 2006–but, critically, not afterwards. Instead, an ex post facto-based invalidation would have left as an open question whether the Constitution permits commissions to prospectively try non-international war crimes. But by effectively excising al Bahlul’s ex post facto challenge from his appeal, the en banc court sharpened the focus of the remand on al Bahlul’s broader challenge to his conspiracy conviction–that Congress lacks the Article I power to recognize such an offense; and, even if it doesn’t, that Article III requires trials of such offenses to take place in Article III civilian, as opposed to non-Article III military, courts.

To be sure, there’s already one conspiracy prosecution pending in the Guantánamo commissions based upon post-MCA conduct, which might otherwise have raised the same Article I and Article III questions even if al Bahlul had been resolved on narrow, ex post facto grounds. But that case is in its earliest stages, and is, at best, several years away from the D.C. Circuit. Because of the peculiar procedural evolution of this case, al Bahlul raises these questions now–and in a manner that, as I note below, is going to be all-but impossible for the D.C. Circuit to avoid. And although I have strong views on the merits of the Article I and Article III questions, the key for present purposes is that they are now front-and-center in al Bahlul, regardless of what the D.C. Circuit ultimately holds.

As for why the power of the commissions to try non-international war crimes is so central to their utility, keep in mind that very few of the Guantánamo detainees are accused of direct participation in completed offenses recognized as international war crimes. To be sure, the 9/11 defendants are a critically important counterexample, but theirs is an outlier case, as it is arguably the only case currently before the commissions that doesn’t raise any analogous jurisdictional question. Thus, if al Bahlul prevails on either his Article I or Article III arguments, that would effectively limit the Guantánamo commissions (and any commissions held in the future under the auspices of the MCA) to trying international war crimes (as they historically have been and, in my view, constitutionally must be). That certainly is not an empty set of offenses (see, e.g., the 9/11 trial), but it will necessarily allow a materially smaller set of cases to be tried by commissions than what the government is currently seeking. The flip side is equally true; if al Bahlul’s Article I and Article III challenges fail, that will cement the authority of the commissions to try non-international war crimes–and will not only open the door to more prosecutions at Guantánamo, but will also underscore the availability of the commissions to try certain terrorism suspects going forward–and the ability of Congress to expand military jurisdiction to encompass a host of domestic offenses not previously thought to be so triable.

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Of course, the D.C. Circuit could avoid such a momentous decision if it reverses al Bahlul’s conspiracy conviction on the narrowest ground remaining in the case–that it violates al Bahlul’s First Amendment rights. As I’ve explained elsewhere, though, my own view is that this is the weakest of al Bahlul’s four remaining challenges to his conspiracy conviction (the other challenge–that the MCA violates equal protection insofar as it discriminates on the basis of citizenship–is also a longshot, but, like the Article I and Article III challenges, is not limited to al Bahlul’s case). Simply put, all of the action on Wednesday is likely to be on the Article I and Article III challenges to al Bahlul’s conspiracy conviction. And no matter how the panel resolves those questions, that it will resolve them will be a critical turning point for the commissions, and for their utility going forward, one way or the other.

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About the Author

Co-Editor-in-Chief of Just Security, Professor of Law at the University of Texas School of Law Follow him on Twitter (@steve_vladeck).