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What al Bahlul Says, and What It Means

It’s going to take some time to fully work through the lengthy opinions handed down by the D.C. Circuit this morning in al Bahlul v. United States. But at the risk of oversimplifying things, what follows is a quick and dirty take on the holdings and implications of the ruling:

  1. The Bottom Line: Writing for herself and Judge Tatel, Judge Rogers held that (1) the court was required to review Bahlul’s Article III challenge to his military commission prosecution for conspiracy de novo (because it’s a structural challenge to the jurisdiction of a court); and (2) on de novo review, “the Article III exception for law of war military commissions does not extend to the trial of domestic crimes in general, or inchoate conspiracy in particular.” There’s a lot of analysis supporting this conclusion about which I’m sure we’ll have more to say in the days to come, but the gist is relatively simple: There’s no precedent supporting the extension of Article III’s carve-out for military commissions to encompass wholly domestic offenses like the inchoate conspiracy charge at the heart of this case, and the government’s arguments for doing so fail to persuade.
  2. Judge Tatel’s Concurrence: Judge Tatel’s 10-page concurring opinion in no way narrows the scope of Judge Rogers’s majority opinion (which he joins in full). Rather, he wrote separately to (1) explain why he nevertheless joined the en banc majority in rejecting al Bahlul’s ex post facto challenge to his conspiracy conviction (to wit, the different standard of review); and (2) offer some observations on the separation-of-powers themes undergirding Judge Rogers’s analysis.
  3. Judge Henderson’s Dissent: Judge Henderson’s lengthy dissent (complete with its own table of contents) vigorously disputes both of the majority’s holdings–that de novo review was appropriate, and that, on the merits, it violates neither Article I nor Article III for Congress to empower a military commission to try domestic offenses such as inchoate conspiracy.
  4. What It Means: My own personal view (I’m biased) is that this is a Very. Big. Deal. If left undisturbed (more on that in a moment), this ruling will categorically foreclose any military commission trial not based upon an established international war crime (while leaving perfectly intact the settled power of the government to prosecute terrorism suspects in civilian courts, as Judge Tatel emphasizes in his concurrence). In one brush, then, this limits the future of the Guantánamo commissions to the 9/11 trial, maybe al-Nashiri (which has its own jurisdictional baggage), and, quite possibly, nothing else. It also cements the validity of post-conviction challenges to some of the convictions that have already been obtained. It’s true that General Martins has already taken steps to minimize the number of cases that would be affected by this precise outcome (by amending the charges in the 9/11 case and not bringing other prosecutions), but in practical terms, al Bahlul could prove to be the final nail in the coffin of the commissions for just about anything other than the 9/11 trial.
  5. What Happens Now? Here we get to the million-dollar question. Given the presence of both Judges Rogers and Tatel in the panel majority, the government’s chances of successfully pursuing rehearing en banc are virtually nil. There are 11 active judges on the Court of Appeals, and so even if all three of the other Republican appointees join Judge Henderson, the government would still have to win over at least two of the other five Democratic appointees (Chief Judge Garland and Judges Srinivasan, Millett, Pillard, and Wilkins) in order to have a shot. I wouldn’t hold my breath. Instead, the real question is whether the government seeks certiorari. If they do, it’s worth reminding folks that, in all five post-9/11 terrorism cases in which the government has asked the Supreme Court to step in (PadillaIqbalHumanitarian Law Projectal-Kidd, and Clapper), the Justices have acquiesced (and, ultimately, ruled for the government). But the government has apparently been sharply divided in the past about whether to take this exact question (the power of military commissions to try domestic offenses) to the Supreme Court. If nothing else is clear from this morning’s decision, the D.C. Circuit has now almost certainly forced the goverrnment’s hand…

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About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).