This afternoon, the D.C. Circuit granted rehearing en banc in al Bahlul v. United States, the constitutional challenge to the Guantánamo military commissions’ authority to try domestic offenses about which we’ve had a little bit to say in the past. In the process, the Court of Appeals vacated its major June 2015 ruling (which had held that such jurisdiction violates Article III), and set the whole matter for new briefing and argument — the latter scheduled for December 1, 2015.
I’m sure we’ll have lots more to say as December 1 approaches, but let me just offer four quick thoughts on today’s news here:
1) The Standard of Review. In addition to scheduling matters (including a super-compressed briefing schedule — eek!), the order granting rehearing also directs the parties to address two points in addition to whatever other arguments they choose to make. The first of these is the proper standard of review for Bahlul’s Article III claim, presumably given the en banc Court of Appeals’ holding in its July 2014 opinion that Bahlul forfeited his Ex Post Facto challenge. What this suggests is that there are at least some judges besides Henderson (who flagged this point in her dissent from the June 2015 panel opinion) who are skeptical of the June 2015 panel’s conclusion that an Article III challenge to the jurisdiction of a military commission cannot be forfeited. This matters, of course, because whether the claim is reviewed de novo or for plain error could make all the difference in how it is resolved (as Judge Tatel highlighted in his concurrence in the June 2015 panel opinion). In other words, if a majority of the D.C. Circuit wants to hold that (1) Bahlul forfeited his Article III challenge; and (2) such a challenge can be forfeited, that would allow the Court of Appeals to avoid the Article III elephant in the room the same way it avoided the ex post facto problem in its July 2014 en banc decision — by only reviewing it under a highly deferential standard that wouldn’t apply in any other cases.
2) Conspiracy as a Mode of Liability. The order also directs the parties to address whether Congress, acting under the Define and Punish Clause, can subject to trial by military commission a conspiracy to commit war crimes, notwithstanding Article III. That is to say, if Congress can define and punish the war crimes themselves as offenses under the law of nations (which all agree it can), can Congress also define a separate offense that merely reflects a different mode of liability for the underlying law-of-nations violation? This is a fascinating question, but a strange one for the Court of Appeals to raise here, since Bahlul was neither charged with nor convicted of conspiracy to commit a completed war crime; he was convicted of inchoate conspiracy, simpliciter. Perhaps briefing on this question will help the Court of Appeals figure out where the line is between what Congress can and cannot do, but it seems odd to direct the parties to focus on a hypothetical.
3) My Poor Math. Today’s news also reveals my poor math skills in two respects: First, although I suggested last week that we were quickly reaching the point where no news likely meant a denial, obviously, we weren’t quite there yet. Second, and more importantly, I never understood where the government would find the votes it needed to take this case to the full court. To make a long story short, the government needed the votes of (at least) two Democratic appointees, which means, given the composition of the June 2015 panel and the recusal of Judge Srinivasan, that the government needed at least two of Chief Judge Garland and Judges Pillard, Millett, and Wilkins to support rehearing. Color me surprised that those votes were there.
4) More Delay. Finally, and perhaps most importantly, today’s news means that the Guantánamo military commissions are only going to be dragged out that much more, since it will now be next summer at the earliest before the D.C. Circuit rules on the merits of Bahlul’s Article III claim (never mind the other remaining constitutional challenges Bahlul has raised to his conviction that would have to be decided if the Article III claim is rejected). Playing this forward, that means that, at the earliest, the Supreme Court would consider this question during its October 2016 Term — with a decision by June 2017. And even then, given the briefing order’s focus on the standard of review, all we may get is a holding that, under plain error review, al Bahlul’s conviction did not violate Article III. That result would have zero precedential value, and so the Article III question would still be out there.
If nothing else, this case continues to be a jobs program. Stay tuned…