Editor’s Note: This is the most recent 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.

The Supreme Court’s Article III jurisprudence supports the military commission conviction of Ali Hamza al Bahlul, a former aide to Osama bin Laden whose trial included what the en banc DC Circuit in 2014 called “entirely uncontroverted” evidence of Bahlul’s admitted “role” in the 9/11 attacks. Jim Schoettler and I filed an amicus brief making this point on behalf of a group of scholars and former judge advocate generals and national security officials for the DC Circuit’s en banc rehearing of a panel decision vacating al Bahlul’s conspiracy conviction (the case will be argued December 1). Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction, as the Court permitted an agency to adjudicate analogous matters in Commodity Futures Trading Commission v. Schor. Given the pragmatic cast of Justice O’Connor’s opinion for the Court in Schor, al Bahlul’s conviction readily meets the Court’s test (for more on this point, see my UC Davis Law Review piece, Justice at War).

In crafting guidance for an area of law that Chief Justice Roberts acknowledged in 2011 “has not been entirely consistent,” the Court has cited a spectrum of factors that determine when a congressionally created tribunal passes muster under Article III. As early as Chief Justice Marshall, the Court recognized that in exercising its Article I powers, Congress needed the flexibility to create tribunals that lacked Article III’s iron-clad safeguards of judicial independence, such as lifetime tenure. Deciding when that flexibility did not endanger Article III’s core values, Justice O’Connor in Schor cited several factors, including Congress’s purpose in establishing a tribunal without Article III’s attributes, limits on the jurisdiction of such tribunals, and the degree of control over such tribunals exercised by Article III courts. Elsewhere in the opinion, as Steve notes, Justice O’Connor also referred to the “origins and importance” of the rights to be adjudicated. Al Bahlul’s conviction fits these pragmatic factors.

Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime). International tribunals have required a completed crime, such as the murder of civilians. Given a completed crime, international tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY) have readily accepted conspiracy (or cognate theories such as Joint Criminal Enterprise (JCE)) as a form of liability.

In other words, under international law the plotter of a murder that actually occurs is just as guilty of murder as the person who pulls the trigger. Moreover, as the ICTY said in the Tadic case, liability for JCE can entail relatively modest help, in which the defendant intentionally acts as a “cog in the wheel” of a completed war crime. Steve worries in his fine Georgetown Law Journal piece — as do David Glazier (here) and Jonathan Hafetz (here) — that allowing prosecutions for mere agreements in military commissions would unduly expand the conduct that could be tried in that forum, to the detriment of Article III courts. (While Bahlul has argued that the government abandoned its enterprise theory, that assertion is misleading: As I show in this Harvard Journal of Law & Public Policy piece, the government dropped a far broader RICO-based theory based on mere joining of a terrorist group, not the active participation required under JCE and demonstrated at al Bahlul’s trial.)

Our brief cites Justice O’Connor’s opinion in Schor in arguing that al Bahlul’s conviction is consistent with Article III. Congress authorized commissions to try a defendant for conspiracy to commit war crimes (e.g., the murder of civilians) because Congress sought to promote deterrence and reduce impunity. To achieve these twin goals, Congress empowered the government to hold accountable those belligerents in an armed conflict whose plans to murder civilians were still in process. The determination that waiting for the actual murder of civilians  poses too great a risk is a decision well within Congress’s Article I powers, given the Supreme Court’s observation in Ex Parte Quirin (the 1942 Nazi saboteurs case) that military commissions are an important “incident” of both Congress’s war powers and the President’s power as Commander-in-Chief. While Chief Justice Stone, in his opinion for the Court in Quirin, focused on the use of commissions to try completed violations of the “law of war,” not inchoate conspiracies to commit such violations, Stone also disclaimed any unduly “meticulous” fixing of the law of war’s “ultimate boundaries.” Stone’s reluctance to accept a rigid account of the law of war’s parameters suggests that Congress should receive a measure of deference.

The Necessary and Proper Clause reinforces Congress’s authority to establish military commissions in this context. Commissions address the daunting obstacles that confront Article III trials of belligerents apprehended abroad. As Justice Jackson suggested in Johnson v. Eisentrager, the logistical challenges of bringing an enemy belligerent captured overseas to the U.S. for a civilian trial would “divert … efforts and attention from the military offensive abroad to the legal defensive at home.” Recent US efforts to use civilian courts to try terrorists captured overseas demonstrate the continued relevance of Jackson’s warnings.

Consider two terrorism prosecutions cited as poster children for Article III courts by Judge David Tatel in his concurrence in the panel decision. The US military devoted substantial resources to the capture of Ahmed Abu Khattala, which led to Khattala’s subsequent arraignment in federal court in Washington on charges of leading the 2012 Benghazi attack. Similarly, complex coordination over time between Pakistan, Kenya, and the US on capture, interrogation, and transfer was necessary for the prosecution of participants in the 1998 bombings of US embassies in East Africa.

It is fortunate that civilian prosecutions worked in the embassy bombings cases, which account for the majority of terrorism prosecutions in which defendants were apprehended abroad (Khattala’s prosecution is pending). However, Congress’s authority under the Necessary and Proper Clause to enact legislation that is “conducive” to exercise of its Article I powers surely empowers Congress to give the Executive Branch the option of a military commission in a narrow range of cases when logistical or security obstacles to civilian prosecution appear unduly arduous. (See, for example, the discussions of Congress’s power under the Necessary and Proper Clause in United States v. Comstock and McCulloch v. Maryland.) Military commissions cannot and should not replace Article III courts, but they can help bridge logistical and security gaps that terrorists would otherwise exploit.

Consistent with Justice O’Connor’s approach in Schor, trying belligerents for conspiracy to commit war crimes adds only a limited set of cases to the dockets of commissions. Our brief acknowledges that commissions can only try 1) belligerents in an armed conflict for, 2) conspiracy to commit clear war crimes, such as the murder of civilians, 3) reinforced by a specific overt act committed by the defendant. This cabined definition would preclude commission trials of offenses short of war crimes, such as charges of material support of terrorist groups based on a defendant’s mere provision of financial aid. The framework enacted by Congress in the Military Commissions Act also ensures the primacy of Article III courts by providing that the DC Circuit shall review de novo all legal questions that a commission decides. That constraint, relied on in Supreme Court precedents such as Crowell v. Benson, ensures that commissions will adhere to the rule of law.

Moreover, as Chief Justice Stone noted in Quirin, the origins of trial of such offenses in US military tribunals started before the Constitution’s enactment. Stone cited General Washington’s convening of a commission during the Revolutionary War to try British major John Andre for conduct relating to the treason of Benedict Arnold. According to Chief Justice Stone, commissions were vital in that conflict, as well as the Civil War and World War II, because the exigencies of wartime ruled out “familiar parts of the machinery for criminal trials in the civil courts.” The Court’s decision in Quirin upheld the commission convictions of the Nazi saboteurs charged in that case, even though the defendants were captured in the US, where courts were open throughout World War II. In contrast, al Bahlul was a belligerent captured abroad, whose transfer to the US for a civilian trial would raise a host of legal and logistical issues.

Al Bahlul’s own admitted complicity in a clear and complete war crime — the September 11 attacks — is a further limit on commissions’ intrusion into Article III’s domain. Al Bahlul, as members of the commission specifically found and the en banc DC Circuit acknowledged in its 2014 decision, engaged in acts that “directly relate” to September 11. Those acts include the administration of the bayat (the al-Qaeda loyalty oath) to two key 9/11 figures: Mohamed Atta, the plot’s ringleader in the US, and Ziad Jarrah, the pilot of Flight 93, which crashed in Pennsylvania. Al Bahlul also admitted that he had typed the “martyr wills” of Atta and Jarrah justifying their handiwork. In addition, FBI agent Ali Soufan testified that al Bahlul had served as a minder for Atta and Jarrah during their stay in bin Laden’s compound. Demonstrating his intent to aid in the murder of U.S. civilians, al Bahlul announced that in his view there simply were no true US civilians — everyone, including the visitors, workers, and first responders in the World Trade Center on September 11, was complicit in the actions of the US government that in al Bahlul’s view (and bin Laden’s) justified the attacks. Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

Al Bahlul would prevail if the Court’s Article III jurisprudence hinged on what Justice O’Connor, in Thomas v. Union Carbide, derisively termed a “doctrinaire reliance on formal categories.” Fortunately, the Court rejected this rigid approach, to avoid what Justice O’Connor in Schor called “constrict[ing] Congress’s ability to take needed and innovative action.” Justice O’Connor’s pragmatic test respects Congress’s Article I prerogatives, protects Article III courts, and supports al Bahlul’s conviction.