Previewing Next Tuesday’s Oral Argument in “Al Bahlul IV”

Editor’s Note: This is the first post in a mini-symposium leading up to next week’s en banc oral argument in the DC Circuit in Al Bahlul v. United States. You can check out all of the pieces in the series here.

Next Tuesday morning at 9:30am (EST), the en banc DC Circuit (minus Judge Sri Srinivasan, who’s recused) will hear an hour of oral argument in Al Bahlul v. United States (what I’ve previously labeled “Al Bahlul IV”). As readers likely know, Al Bahlul raises the constitutionality of military commission jurisdiction over the crime of inchoate conspiracy (and, more generally, over all offenses that are not international war crimes)–perhaps the most significant constitutional challenge to the jurisdiction of a military commission since World War II, and a question on which both the legacy and future prospects of the Guantánamo military commissions almost certainly hangs. But the en banc court also ordered the parties to brief what standard of review applies to that jurisdictional challenge (since al Bahlul did not expressly present it to the trial court), raising at least the specter that, as with the Ex Post Facto Clause claim in “Al Bahlul II,” the full court will duck the merits by resting a pro-government decision on the highly deferential “plain error” standard.

Frankly, I’m not sure there’s a lot to say about this case that hasn’t already been said, given the number of times it’s been argued in the Court of Appeals and the voluminous commentary (for some of which I’m responsible) provoked by last summer’s en banc ruling and this June’s three-judge panel ruling in “Al Bahlul III.” Indeed, as I wrote back in September when the Court of Appeals once again granted the government’s petition for rehearing en banc, all this really means is 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.

Keeping with that last sentiment, and to help give a full flavor of what’s riding both practically and precedentially on next Tuesday’s argument, Just Security is hosting a mini-symposium on the case this week, featuring posts from Peter Margulies, Jonathan Hafetz, and me, among others. I can’t promise that we have a lot to say that is new, but, if nothing else, hopefully we can help crystallize what are likely to be the key points of contention before the Court of Appeals. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).