Five Quick Reactions to the al Bahlul Oral Argument

Over the course of 71 minutes this morning (41 more than had been allotted), the D.C. Circuit heard oral argument in al Bahlul v. United States, the appeal challenging whether military commissions may constitutionally try offenses that aren’t recognized as international war crimes. I’ve written quite a bit about the case before, and won’t rehash all the details here. Instead, in the post that follows, I offer five quick reactions to Wednesday’s argument–and what it may portend for a potential result.

  1. What Quirin Did (and Didn’t) Hold: As I’ve explained previously, one of the real disputes between the parties is how much, if any, of this case is controlled by the Supreme Court’s 1942 decision in Ex parte Quirin. And what became quite clear from Wednesday’s argument is that, at least in Judge Tatel’s view, Quirin does not hold that military commissions are constitutionally limited to trying international war crimes (the position taken by Michel Paradis, arguing for al Bahlul), but it strongly implied as much (“strongly suggested dicta,” in Tatel’s words). To that end, Judge Tatel repeatedly asked John De Pue, arguing for the government, whether he had any other cases supporting either of two propositions: (1) that Congress may subject offenses to military commissions other than pursuant to the Define and Punish Clause of Article I; and (2) that Article III allows military commission trials of non-international war crimes. Although I believe there are answers to both of those questions other than Quirin (albeit answers that don’t help the government’s position in this case), De Pue rested his argument on Quirin. At least for Judges Rogers and Tatel, that didn’t seem to be a satisfying response. De Pue then pivoted to Quirin‘s reliance upon spying as an offense triable by military commission, but Judges Rogers and Tatel both pushed back with language in Quirin suggesting (perhaps incorrectly) that the Court did view spying as an international war crime in so concluding.
  2. What’s the difference between Article I and Article III? The other big picture question with which Judge Tatel seemed interested in was the difference between al Bahlul’s Article I argument (that Congress lacks the power to even codify conspiracy as a war crime); and his Article III argument (that, even if Congress could create such an offense, it can’t subject it to trial by military commission). Paradis’s response was that they are separate and independent–that even if Congress could recognize conspiracy as a war crime, Article III limits the jurisdiction of military commissions to offenses triable by military commission at common law (and so not conspiracy). My own view, as readers may well remember, is slightly broader: Article III would, or at least should, allow trials of offenses that become international war crimes, even if they weren’t recognized as such at common law. But critically for present purposes, this distinction is irrelevant. Because all (including the government) concede that conspiracy is not now recognized as an international war crime, what would happen in the future if international law evolved doesn’t bear on the validity of the assertion of military jurisdiction here.
  3. Waiver and the Standard of Review. Not surprisingly given the en banc Court of Appeals’ reliance upon waiver in disposing of al Bahlul’s ex post facto challenge to his conspiracy conviction, there was some discussion of the “standard of review.” Curiously, it took De Pue close to eight minutes to explain the government’s position to the Court of Appeals–that the Article I issue is forfeitable (and was forfeited), and that insofar as the Article III issue is “structural,” it’s not waivable. But by the end of a rather confusing colloquy, De Pue conceded, contra at least some of the government’s argument in its brief, that the Article III issue should be reviewed de novo–since it goes to the underlying jurisdiction of the commission in the first place. And Michel Paradis responded on rebuttal that (1) the equal protection claim was raised below, and so wasn’t forfeited; and (2) the government waived waiver of the Article I issue by litigating it in the Court of Military Commission Review. We’ll see if anything comes of the waiver question, or if–as seemed likely from the argument–the case rises and falls on the (un-waivable) Article III challenge.
  4. How many cases will this affect? Toward the end of De Pue’s argument, he also fielded questions from Judges Rogers and Tatel about how many cases a ruling in Bahlul’s favor would affect–i.e., how many detainees who would otherwise be tried in the commissions could not be if the government lost on the Article III question (and therefore could no longer charge inchoate conspiracy). De Pue speculated, suggesting that the answer is “a handful,” or “in the teens.” But on rebuttal, Paradis pointed out that there are only three cases pending in the commissions at present, none of which only include a standalone conspiracy charge. (And, for what it’s worth, there’s only one other case where inchoate conspiracy appears to even have been charged at this point.) Of course, if Judges Rogers and Tatel were trying to figure out the consequences of ruling against the government, that may itself give some clue as to how things are headed…
  5. Equal Protection. Finally, in an interesting strategic choice at the very end of his opening argument, Paradis pivoted to al Bahlul’s equal protection challenge–that the MCA is unconstitutional insofar as it only applies to aliens. Citing Wong Wing, Paradis argued that the Due Process Clause of the Fifth Amendment categorically prohibits segregated criminal justice–and yet that’s just what the MCA does. In response to questions from Judge Tatel, Paradis suggested that the D.C. Circuit’s decision in Kiyemba v. Obama, which could fairly be read as denying any Fifth Amendment rights to non-citizens at Guantánamo, only applies to civil cases–and that it could only apply to civil cases, in light of Wong Wing. And in one of the more remarkable moments of the argument, De Pue, in response, conceded that Kiyemba is limited to civil cases–and that the Due Process Clause of the Fifth Amendment does apply to the military commissions. If the D.C. Circuit sides with al Bahlul on either the Article I or Article III issues, it can avoid the equal protection challenge. But if the government prevails on the Article I and Article III arguments, De Pue’s concession may have made al Bahlul’s equal protection claim that much stronger.

Not surprisingly, there were no questions about al Bahlul’s First Amendment challenge. And Judge Henderson, who presided, did not ask questions of either attorney. 

About the Author(s)

Steve Vladeck

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