This morning’s New York Times features a story by Charlie Savage about yesterday’s addition of a conspiracy charge to the pending military commission proceeding at Guantánamo against Abdul Hadi al Iraqi, a high-value detainee apparently captured in late 2006 and one of the last detainees sent to Guantánamo in early 2007 (after some period of detention at a CIA black site). As Charlie rightly notes, this could become a very big deal–and a test case for the future of the commissions after the impending en banc D.C. Circuit decision in al-Bahlul. After all, the issue in al-Bahlul, as it was in Hamdan II, is whether the offenses enumerated by Congress in the Military Commissions Act of 2006 can be applied to pre-MCA offenses not recognized as international war crimes at the time of their commission–i.e., can Congress retroactively purport to define the laws of war? In Hamdan II, a three-judge panel of the D.C. Circuit unanimously held that the answer was no (albeit on statutory, rather than constitutional grounds). But Judge Kavanaugh expressly distinguished the question of the MCA’s prospective application–i.e., whether Congress can prospectively subject to trial by military commission offenses (like conspiracy and material support) that are not recognized as international war crimes. As he wrote (for only himself) in footnote 6:
Although material support for terrorism is not yet an international-law war crime, Congress’s war powers under Article I are not defined or constrained by international law. The Declare War Clause and the other Article I war powers clauses do not refer to international law, unlike the Define and Punish Clause. Moreover, Congress has long prohibited war crimes beyond those specified by international law. The U.S. Constitution does not give the international community—either directly, or indirectly through the vehicle of international law—a judicially enforceable veto over Congress’s exercise of its war powers. Put simply, the United States may be a leader in the international community, not just a follower, when Congress authorizes war against a terrorist organization or makes crimes such as material support for terrorism war crimes triable by military commission.
And, although the timing and circumstances of al Iraqi’s capture are still murky, it appears, in light of both the government’s filing and its position with respect to pre-MCA offenses, that at least some of the underlying conduct at issue post-dated the MCA’s October 17, 2006 enactment. In other words, al Iraqi appears to feature the first conspiracy charge based upon post-MCA conduct, and therefore the first case to test Judge Kavanaugh’s distinction.
I’ve written at great length (and filed an amicus brief in support of the Petitioner in al-Bahlul) to explain the shortcomings in this argument (and Judge Kavanaugh’s cursory analysis)–that, separate from retroactivity concerns, Article III generally precludes the assertion of military jurisdiction over offenses that are not recognized as triable by military commission under international law. But whatever side one comes down on, this is the key legal question for the future of military commissions, especially if the en banc D.C. Circuit rules for the Petitioner in al-Bahlul. After all, all such a decision would do is foreclose military commission trials for most of the current detainees (most of whom have been there since before the MCA was enacted). But if the commissions are going to be anything more than a one-off solution for the Guantánamo legacy cases, their utility is going to depend entirely upon whether they are allowed to try post-MCA conspiracy and material support offenses (as opposed to clear international war crimes). Thus, al Iraqi just became the critical test case for the role of military commissions in forward-looking U.S. counterterrorism policy.