This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

Rumors continue to swirl over the Obama Administration’s latest apparent plan to “close Guantánamo.” But whatever the ultimate details (assuming it ever comes to pass), one thing that seems clear is that the Guantánamo military commissions will continue–even if their location shifts to somewhere stateside. As General Mark Martins, the commissions’ Chief Prosecutor, explained in a recent statement, “military commissions . . . are carrying an important and lawful burden within the larger effort to maintain peace and security. We should expect that they will continue to carry that burden, while upholding our cherished values, for the foreseeable future.”

Like the continuing long-term confinement without trial of at least some of the Guantánamo detainees after such a stateside move, defenders of the Obama Administration (to say nothing of the Administration itself) may well suggest that the commissions are merely a “legacy” problem–the result of difficult if not unwise choices made by their predecessors that can’t now be undone without significant hardship. So construed, the Obama Administration’s continued reliance upon the commissions to try currently pending cases (and a handful of others), whether at Guantánamo or elsewhere, is nothing more than inertia running its course as the government closes the loop. Ditto its defense of convictions obtained in the commissions, at least on direct appeal to the Court of Military Commission Review (CMCR) and D.C. Circuit.

The petition for rehearing en banc filed by the government last week in the al Bahlul case in the D.C. Circuit calls that narrative into serious question. As I explain in more detail below the fold, the nature of the arguments advanced by the Obama Administration in explaining why the D.C. Circuit should rehear the June 12 panel decision (which held that Article III bars the commission from trying domestic offenses like inchoate conspiracy) represents a subtle but decisive shift–from defending the commissions that the current officeholders were arguably stuck with to affirmatively seeking to expand the constitutional scope of military jurisdiction beyond settled precedent. Reasonable minds may disagree over the merits of the argument in support of such a move; my point in this post is simply that it is an argument wholly owned by the incumbent administration. 

As I explained at some length on Thursday, the government’s petition for rehearing en banc in al Bahlul offers two principal arguments. The first contention, which asserts that the panel opinion gave insufficient deference to the political branches, is largely a rehash of the government’s position throughout this litigation (and of a series of dissenting opinions), and doesn’t really add much to the conversation. The second contention, in contrast, is far more significant, for it argues that the panel decision deserves full court rehearing because of its “exceptional significance” insofar as (1) the “[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) “the panel’s decision has significant implications for ongoing prosecutions.”

In my post from last Thursday, I explained why, in my view, both of these arguments are dramatically overstated (if not affirmatively misleading). Here, I want to make a different point: The upshot of what the government is arguing in its rehearing petition is that Congress and the President should be able to subject to trial by military commission a sweeping range of offenses–including inchoate crimes–for which there are few (if any) historical precedents supporting military, as opposed to civilian, trials. After all, if inchoate conspiracy as a standalone offense can and should be subject to prosecution before a law-of-war military commission, what crimes shouldn’t be, on the government’s view? At least going on Judge Henderson’s opinion dissenting from the panel decision, the limiting principle (that it be wartime, and that the defendants be non-citizens) isn’t all that comforting…

Moreover, in my view, at least, there’s a marked difference between defending a conviction against an appeal (as the government ably did in al Bahlul’s case before both the CMCR and the original D.C. Circuit panel) and affirmatively appealing an adverse decision. In the former context, the government is merely acting in support of the rendering court–providing additional argumentation in defense of a decision reached by a neutral decisionmaker. In the latter context, the government is arguing that the courts have gotten it wrong, and that the government’s own theory ought to prevail contra the neutral decisionmakers’ reasoning. And by going for rehearing en banc in al Bahlul, the Obama Administration is now offering a theory that was never offered by its predecessors–that Article III has very little to say when the political branches decide, in concert, that particular offenses should be triable by law-of-war military commissions.

Don’t get me wrong; there were lots of other problematic elements of the Bush Administration’s defense of military tribunals, both before and after the Supreme Court’s 2006 decision in Hamdan v. Rumsfeld and the passage of the Military Commissions Act of 2006 (MCA). But perhaps only because of timing, the Bush Administration never squarely confronted the Article III question now at the forefront in al Bahlul–which, if nothing else, means it created no legacy argument on the matter. Nor, in my view, is there anything to the argument that the defendants are the legacy problem, since the government has candidly conceded that it reserves the right to continue to detain these individuals without trial even if their military commission convictions are overturned. In other words, it’s not like the only option in al Bahlul’s case is to find some post hoc legal rationalization for his military commission trial.

To be sure, there are other moments when the Obama Administration could have been said to have “owned” the military commissions, including (1) President Obama’s 2009 speech at the National Archives; (2) the President’s push for, and ultimate signing of, the Military Commissions Act of 2009; (3) the decision to pursue the 9/11 trial in the military commissions as opposed to civilian federal court in Manhattan; and (4) the government’s prior (successful) petition for rehearing en banc in al Bahlul II–where the D.C. Circuit held that al Bahlul had forfeited his ex post facto challenge to his conspiracy, material support, and solicitation convictions. (See also the government’s interlocutory appeal in the al Nashiri case.)

But this time feels different. None of those prior episodes involved the government’s formal and affirmative endorsement of a novel constitutional argument to justify an expansive use of military commissions. The 2009 MCA, if anything, remedied at least some of the constitutional problems with the 2006 MCA; whatever the politics, the 9/11 trial is the military commission case on the strongest jurisdictional footing; and the first round of en banc maneuverings in al Bahlul were on hypertechnical and case-specific procedural grounds. Even in al Nashiri, the government’s appeal is on a close legal question about the extent to which a French-flagged ship was part of the non-international armed conflict between the United States and al Qaeda.

And perhaps most importantly, the fact that the government is making these arguments at the rehearing stage in the D.C. Circuit seems at least a potential indicator that, if the panel decision is either left alone or affirmed by the en banc court of appeals, a petition for certiorari to the Supreme Court may well be forthcoming. Again, reasonable minds will surely disagree over whether the Obama Administration should prevail in these arguments. But by that point, what I hope no one can dispute is that the arguments–and, increasingly, the military commissions themselves, will be the legacy of the Obama Administration, and no one else.