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.

My thanks to Peter Margulies for opening up our mini-symposium previewing next Tuesday’s en banc oral argument in Al Bahlul IV. There’s quite a lot to say about Peter’s provocative post, some of which has already been said by Kevin Heller; some of which I wrote in a pair of lengthy posts right after the panel decision in Al Bahlul III (one about why Article III functionalism shouldn’t apply to military commissions, and, one about why, even if it does, the functional case for military commission trials of conspiracy fails to persuade); and some of which is just correcting the factual record with regard to the (quite significant) number of successful prosecutions of terrorism suspects captured overseas in Article III courts since September 11 (there are, contra Peter, far more examples than just the embassy bombings cases). Suffice it to say, for neither the first nor last time, I find Peter’s efforts to re-write the record of both al Bahlul’s trial and the jurisprudence of terrorism prosecutions more than a little exasperating.

But rather than relitigate matters that I had thought were long since settled, I wanted to use this post to take things in a different direction, and to try briefly to explain why I don’t think that whatever the en banc court decides is going to end up mattering a whole lot. In a nutshell, I foresee one of two possible outcomes: Either the court ducks by once again relying upon the “plain error” standard (which would be especially hard to justify in this case), or it doesn’t, in which case whatever it says on the merits will almost certainly not be the last word. 

I.  The Standard of Review

As readers may recall, when this case was last before the en banc DC Circuit (culminating in the July 2014 decision in Al Bahlul II), the Court of Appeals held, 4-3, that al Bahlul had “forfeited” his ex post facto challenges to his convictions for material support, conspiracy, and solicitation — and so only reviewed those challenges under the highly deferential “plain error” standard. And even under such a deferential standard, the court still threw out (unanimously) the material support and solicitation charges. On remand, when the three-judge panel turned to al Bahlul’s “Article III” objection to his conspiracy conviction, it concluded that that claim had to be reviewed de novo, since it was “a structural objection under Article III that cannot be forfeited.” It then proceeded to conclude, on de novo review, that Article III forbids law-of-war military commissions from trying non-international war crimes such as inchoate conspiracy. The government’s petition for rehearing, perhaps tellingly, did not even raise the standard of review as a ground for revisiting the panel opinion. Nevertheless, when the en banc court granted the petition, it specifically directed the parties to address “[t]he standard of appellate review of Bahlul’s conviction for conspiracy to commit war crimes,” citing two Supreme Court cases in which parties were held to have consented to non-Article III (civil) adjudication.

Although the government now makes much out of the standard of review issue, I have a hard time seeing the analogy it seeks to draw between consent (when a party voluntarily agrees to submit itself to the jurisdiction of a particular court) and forfeiture (when a party just neglects to challenge that jurisdiction), all the more so when the former is in a civil proceeding and the latter is in a criminal case. But even for those who disagree, and think forfeiture is a species of consent, it’s worth emphasizing that there are no examples of military courts exercising jurisdiction based upon the party’s consent — and, as al Bahlul notes in his brief to the en banc court, fairly concrete examples to the contrary.

Regardless, there are now two options for the en banc court: (1) hold that al Bahlul “forfeited” his Article III challenge, and then analyze that claim under “plain error” review; or (2) hold that al Bahlul could not forfeit that claim, and thus analyze it under de novo review. I don’t have a good sense for how the court is likely to go here (including what happens if they divide 5-5 on the question), but I do think that a holding that al Bahlul forfeited his claim dramatically minimizes the chances of Supreme Court review, since the Justices may not think it’s worth it to decide such a significant constitutional question saddled down by the baggage of such a highly deferential standard — and one that won’t apply to most other cases. Of course, the Justices could disagree with the DC Circuit on forfeiture and then reach the merits de novo, but that seems less likely to me than simply denying certiorari and waiting for a case in which the question is more squarely (and cleanly) presented.

Assuming that the government would prevail if the en banc court opts for plain error review, then the net effect of a holding that al Bahlul forfeited his Article III challenge will be to leave his conspiracy conviction intact, but to otherwise create no meaningful forward-looking law on the permissible scope of the military commissions, since the Article III question could be raised de novo in the next case in which a non-international war crime is charged. Simply put, the government might win the battle, but at the cost of any resolution of the war.

II.  The “Merits”

If, instead, the en banc DC Circuit applies de novo review, I, of course, have my own views about what that should mean with respect to the result. But either way, a holding, on de novo review, that military commissions either can or cannot try non-international war crimes seems to me to be destined for the Supreme Court. The government has not yet had certiorari denied in a single petition arising out of a post-September 11 counterterrorism or national security policy in which it lost in the Court of Appeals (it’s 5-5), and I also have no trouble thinking that there would be at least four (and probably five) votes for certiorari if the en banc DC Circuit holds that military commissions may try non-international war crimes, since, whatever the merits of such a holding, it would necessarily represent an important expansion upon the Supreme Court’s precedents in the field — an expansion that may be in some tension with at least aspects of the four-Justice plurality opinion in Hamdan v. Rumsfeld.

All of this is to say that the en banc DC Circuit isn’t going to have the last word. Either (1) it will apply plain error review and leave for another day de novo resolution of the Article III question; or (2) it will apply de novo review and rule either for al Bahlul or the government — either of which ought to provoke the Supreme Court to take the case. In one sense, this fact may further underscore the puzzle over why the DC Circuit went en banc in the first place. But if nothing else, it suggests that, for as much ink as has already been spilled (and will yet be spilled) about next Tuesday’s argument and the ultimate decision, when all is said and done, it’s just not going to matter, and the power of the commissions to try domestic offenses (and, perhaps, their overall legitimacy), will remain to be decided.