I wasn’t originally planning to blog about the petition for rehearing en banc filed by the government on Monday in al Bahlul v. United States, challenging the three-judge panel’s June 12 ruling that Article III forbids the Guantánamo military commissions from trying “domestic” criminal offenses such as inchoate conspiracy. Having now had a chance to read through the petition carefully, though, it seems to me that there are two arguments in it that merit a response–not because I would answer the legal questions raised in this case differently (although as readers surely know, I would), but because I think the government is dramatically overstating its case for full court review. Below the fold, I explain why.

I.  The Government’s Petition

The government’s petition offers two principal arguments: (1) that the panel erred by holding that the Military Commissions Act (MCA) violates Article III insofar as it authorizes military commissions to prosecute conspiracy offenses; and (2) that the panel’s decision implicates a question of “exceptional importance” warranting en banc review. The government’s arguments on the first point will be familiar to readers who have followed the litigation, and largely track the deference-oriented reasoning of the separate dissenting opinions by Justice Thomas (in Hamdan I), Judges Brown and Kavanaugh (in al Bahlul II), and Judge Henderson (in al Bahlul III). Honestly, there’s nothing really new, here (other than the rather curious insinuation that, adding enough dissents together somehow proves the incorrectness of the majority’s opinion).

What is new is Part II of the petition, in which the government seeks to explain why the panel decision is so important. That argument, in turn, has two basic claims: (1) that “[t]he panel’s ruling . . . restricts the authority of Congress and the President not simply over pre-2006 conduct in the current armed conflict, but over future combatants in future conflicts, in circumstances that we cannot foresee”; and (2) that “the panel’s decision has significant implications for ongoing prosecutions.”

II.  The Overstated Nature of the Government’s Arguments

Both of these claims are dramatically overstated. To the former, as Judge Tatel pointed out quite forcefully in his concurrence in the al Bahlul III panel decision, nothing at all stops or has stopped Congress from criminalizing (and the President from prosecuting) actions arising out either current or future armed conflicts; such prosecutions must just sometimes be brought in civilian, rather than military courts if the underlying offense is not an international war crime. (Consider, in this regard, the ongoing prosecution in the U.S. District Court for the Eastern District of Virginia of former Taliban detainee Irek Hamidullin.) Perhaps there is an argument for why the forum selection impact of the panel decision is itself a question of the kind of “exceptional importance” warranting full court review, but that’s not nearly the same thing as barring the political branches from acting altogether–which the petition wrongly suggests that the panel decision does.

Moreover, Congress already has authorized military commission trials for those who, like the government claims with respect to al Bahlul, assist in the commission of completed war crimes. 10 U.S.C. § 950q(1) expressly authorizes treatment as a principal of any person punishable under the MCA who “commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission.” If the government’s factual narrative about al Bahlul is correct (but see below), it’s not at all clear why he couldn’t have been charged as a principal in the 9/11 attacks under an aiding-and-abetting theory. Nothing in the panel decision forecloses this argument, and yet the government’s petition is curiously silent on this point. What that suggests is that the government’s concern is not whether it can prosecute detainees like al Bahlul in military commissions, but rather whether it can also prosecute in the commissions those who can’t even be charged under that theory–and, thus, whose only crime is general affiliation with al Qaeda. Given the breadth of civilian material support and conspiracy statutes, I just don’t see the argument for why allowing the commissions to exercise such broad jurisdiction is so vital.

As for the panel decision’s impact on current prosecutions, the petition notes that conspiracy charges are pending in each of the three cases currently before the commissions, and rather broadly asserts that, “Under the panel’s decision, such charges cannot be tried in military commissions, even for conduct that occurred after the MCA was enacted.” This is both overstated and misleading. All the panel held in al Bahlul III was that Article III forbids the trial by military commission of inchoate conspiracy–the charge in al Bahlul’s case–as a standalone offense. Nothing in al Bahlul III either (1) invalidates the MCA’s conspiracy offense (10 U.S.C. § 950t(29)) in its entirety; or (2) prevents the exact approach the government is now taking in the 9/11 and al-Hadi cases–in which “a guilty finding on conspiracy must be accompanied by a guilty finding on at least one object offense,” i.e., in which conspiracy is charged as a theory of liability for a completed war crime.

Don’t take my word for it, though; here’s General Martins, the commissions’ Chief Prosecutor, in a statement from last week: Whatever happens in al Bahlul, “military commissions will continue moving toward trial in its seven ongoing cases, six of them capital, for charges alleging serious, completed overt acts of the accused that the government maintains constitute longstanding violations of the law of war triable by military commission.” If General Martins is correct that it’s business at usual for the Guantánamo commissions, then it’s hard to take seriously the government’s near-breathless assertion of the panel decision’s exceptional importance. 

III.  Subtly Changing the Factual Narrative

Finally, although it’s not as central to the government’s case for rehearing as the points critiqued above, the petition also asserts (without citation, although it appears to be borrowed from Judge Henderson’s al Bahlul III dissent, albeit also without citation), that “even if there were a requirement that the case involve completion of unlawful acts, that requirement was satisfied in this case by the commission’s finding that Bahlul’s personal actions directly contributed to his co-conspirators’ carrying out of the 9/11 attacks.” Thus, the government suggests, even if the panel’s analysis of Article III is correct, it still reached the wrong result because it misapplied the rule to al Bahlul’s case.

Leaving aside the extent to which this argument is certainly not en banc-worthy (since it requires accepting the validity of the panel’s larger constitutional holding), it’s also based upon a complete misrepresentation of the facts. In fact, the military commission judge specifically instructed the Members that they need only find an agreement–and that it was irrelevant whether Bahlul knew about or completed any specific criminal act. More than that, the government itself put on evidence during the trial that al-Bahlul had no foreknowledge of the 9/11 attacks–or anything else for that matter. His crimes, such as they were, came after the fact.

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Just to be clear, I continue to think that the panel decision in al Bahlul is very important. I just disagree with the government as to why that is so, and believe that the government’s arguments for why it is of such exceptional importance as to warrant the rare step of en banc review in the D.C. Circuit are overstated at best, and misleading at worst. There’s no circuit split, and as General Martins himself conceded last week, prosecutions are continuing at Guantánamo without regard to the panel decision. In those circumstances, if further appellate review is warranted, that review should come from the Supreme Court.