Editor’s Note: This is the most recent post in a mini-symposium leading up to tomorrow’s en banc oral argument in the U.S. Court of Appeals for the District of Columbia Circuit in Al Bahlul v. United States. You can check out all of the pieces in the series here.
If one reads through the en banc briefs, much of the commentary, and some of the opinions in the earlier stages of the case, it’s quite easy to lose sight of what the al Bahlul case is fundamentally about. There’s considerable confusion, in particular, about three important things: (i) what al Bahlul was proved to have done (especially the relationship between his acts and the September 11 attacks); (ii) what he was convicted of doing; and (iii) just what is at stake with respect to the principal legal question — in other words, what difference does it make whether Congress can provide for an inchoate conspiracy charge to be adjudicated in a military tribunal rather than in an Article III court?
As I’ll explain below, the case is not about whether Congress has the Article I authority to punish what al Bahlul did, or what he was convicted of doing. It does.
Nor is the case about whether al Bahlul could have been tried and convicted for an inchoate conspiracy to attack civilians, which is what he was charged with. He certainly could have been tried and convicted for such an offense — even, as here, without a finding by the jury of a completed offense — in an Article III court, assuming that Congress had made such conduct unlawful (cf. 18 U.S.C. 2332(b)(2), 2332b(a)(2), 2332f(a)(2)).
Moreover, the en banc case is not about whether al Bahlul could have been tried and convicted for his role with respect to the September 11 attacks. He could have been. Indeed, it’s likely that al Bahlul could even have been tried in a military commission for his conduct related to the September 11 attacks, and that the commission could have convicted and sentenced him as a principal for the 9/11 attacks (although probably not on a conspiracy theory), as long as the prosecution had proved, and the panel had found, that the September 11 attacks occurred.
What the case is fundamentally about, instead, is a much broader and more important question — namely, whether and in what circumstances (and why) Congress has the authority to eliminate the critical Article III protections of a civilian jury and tenure-protected judge for the trial of domestic-law offenses that occur in the “context” of hostilities between parties to an armed conflict.
What did al Bahlul do? . . . and what was he convicted of doing?
If the prosecution had proved, and the commission panel had found, that Ali Hamza al Bahlul had aided al Qaeda’s attacks against civilians on September 11, 2001, then al Bahlul could have been punished as a principal for the offense of attacking civilians. See 10 U.S.C. 950t(2) [which was subsection 950v(b)(2) in the 2006 MCA] (“Any person subject to this chapter who intentionally engages in an attack upon a civilian population as such, or individual civilians not taking active part in hostilities, shall be punished”); id. 950q(1) (providing that “[a]ny person punishable under this chapter who . . . commits an offense punishable by this chapter, or aids, [or] abets its commission . . . is a principal”). And because attacking civilians in an armed conflict is a violation of the international laws of war, the Constitution would permit such a trial and conviction in a military tribunal, rather than in an Article III court, because the Supreme Court has already held, in Ex parte Quirin, that military tribunals can try international law-of-war offenses, notwithstanding the absence of the judge and jury protections of Article III.
The prosecution did not, however, seek to prove al Bahlul’s culpability as a principal for the September 11 attacks. Instead, it asked the military commission panel of officers to convict al Bahlul of a “conspiracy” — an agreement — to perform several acts that would, themselves, be violations of the international laws of war, including, in particular, attacking civilians and civilian objects in an armed conflict. Notably, the prosecution did not ask the panel to find that this agreement resulted in any actual, substantive law-of-war violations — not even the September 11 attacks. Nor did the prosecution even try to demonstrate that al Bahlul had specifically agreed to commit, or help to commit, any particular attacks on civilians.
The basis of the conspiracy conviction was, instead, the prosecution’s showing that al Bahlul eagerly joined al Qaeda, and assisted Osama bin Laden in many ways, with full knowledge that al Qaeda was devoted to a jihad that could and did include the deliberate targeting of civilians. For example, the prosecution introduced evidence that, in his capacity as bin Laden’s personal secretary, al Bahlul took extensive notes of new al Qaeda recruits’ questions about killing and martyrdom, assisted bin Laden in preparing public statements, and operated bin Laden’s communications equipment. And the commission panel found that al Bahlul had committed ten “overt acts” in connection with the alleged unlawful agreement. Some of those overt acts were related to particular attacks on civilians (including the production of an al Qaeda recruitment video highlighting the October 2000 attack on the U.S.S. Cole, which killed 17 American service-members), even if they did not show any specific agreement by al Bahlul to commit such attacks.
As for the September 11 attacks themselves, the prosecution did not introduce evidence that al Bahlul agreed to them, or even that he knew about them in advance. Instead, it introduced evidence that al Bahlul did four things that were in some respect related to those attacks — two things before September 11, and two things after:
(i) long before the attacks, he administered “bayats”—oaths of loyalty to bin Laden—to two individuals who would later pilot aircraft in the September 11 attacks, Muhammed Atta and Ziad al Jarrah;
(ii) just before the September 11 attacks, al Bahlul responded to bin Laden’s direction to put media equipment in the al Qaeda “media van”; and then, on September 11 itself, bin Laden asked al Bahlul to secure video reception because it was “very important to see the news today,” and al Bahlul tried, unsuccessfully, to get such reception;
(iii) al Bahlul later operated the radio that bin Laden used to learn of the worldwide reactions to the attacks; and
(iv) some months after the attacks, al Bahlul transcribed “martyr wills” that Atta and al Jarrah had recorded before their deaths, and delivered those documents to bin Laden.
This evidence, and the panel’s findings, were sufficient to support a conviction for al Bahlul’s agreement to an “inchoate conspiracy” to attack civilians, even without a finding that any civilians were attacked, that al Bahlul agreed to any particular attacks against civilians, or that al Bahlul even knew in advance of the September 11 attacks.
The government acknowledges that — unlike an actual attack on civilians, or aiding such an attack — such an inchoate conspiracy is not an offense under the international laws of war. Therefore Quirin does not resolve the Article III question of whether such a trial can take place in a military tribunal.
What is the Article III question — and what turns on it?
There is no dispute that Congress can make it unlawful to conspire to attack civilians in an armed conflict, even without proof of the completed substantive offense. The principal issue in the en banc appeal, then, is simply whether such an inchoate conspiracy by an enemy belligerent can be tried in a military court rather than in an Article III court. (That’s why al Bahlul’s Article III argument is not a waivable, nonjurisdictional challenge. The government is correct when it argues (see p.19 of its brief) that challenges to Congress’s power to create offenses are not ordinarily jurisdictional in nature. But in this case, Congress certainly had the Article I authority to create the offense; the question on which the case turns is simply whether a military commission had the constitutional jurisdiction to adjudicate that charged offense, or whether Article III instead demands that the offense be tried in a tribunal with a civilian jury and a tenure-protected judge.)
What’s the constitutional difference between the two tribunals? Article III guarantees two things for criminal trials of federal offenses that are not present in military courts: civilian juries, and tenure-protected presiding judges. Article III, section 2, clause 3 guarantees that “[t]he trial of all [federal] crimes, except in cases of impeachment, shall be by jury.” And the Supreme Court has long recognized that Article III establishes a strong presumption that a trial for a federal offense must be supervised by an “Article III” judge with guarantees of lifetime tenure and salary — that is, a judge who enjoys “maximum freedom from possible coercion or influence by the executive or legislative branches of the Government.” United States ex rel. Toth v. Quarles, 350 U.S. 11, 15 (1955); see also Ex Parte Milligan, 71 U.S. 2, 122 (1866) (“One of the plainest constitutional provisions was therefore infringed when Milligan was tried by a court . . . not composed of judges appointed during good behavior.”).
The Court has recognized a small number of exceptions to these two fundamental constitutional requirements for the trial of “all [federal] crimes” — most notably, criminal trials in Article I and Article IV territorial courts; courts-martial of current members of the Armed Forces; and (in Quirin) trials of offenses against the international laws of war. There’s no dispute that al Bahlul’s trial for inchoate conspiracy does not fall within any of these established exceptions to Article III.
The issue in al Bahlul, therefore, is whether the courts should recognize a further, new war-related exception to the judge and jury protections of Article III. And that, in turn, requires the court of appeals to confront at least two important questions: (i) what would the scope of such a new exception be?; and (ii) why should the court permit Congress to deny Article III’s judge and jury protections in such a newly recognized category of cases?
Scope of the new exception. The scope of the proposed exception must be limited in some important way, for surely Congress does not enjoy an unlimited power to eliminate Article III’s judge and jury protections whenever it sees fit, for any and all sorts of trials of federal offenses. So what is the nature of the government’s proposed new exception?
The government appears to suggest that Congress can eliminate the judge and jury protections for trial of any federal offense (i) “committed by an enemy belligerent” (ii) “in the context of hostilities” (see pp. 35, 59 of the USG brief). Presumably, then, satisfying those two conditions would be an irreducible minimum. Elsewhere in its brief, however, the government hints that perhaps one or both of two other conditions must be satisfied, as well: (iii) that the offense is one that has “traditionally been triable by military commissions” (p.51); and/or (iv) that the offense is closely related to offenses against the international laws of war, and thus not cut “out of whole cloth” (p.56).
At oral argument tomorrow it will be interesting to see whether the judges press the government on this question, regarding the scope of the new Article III exception it is urging, and what limiting principles the government offers in response.
Justification. Of course, in order to figure out what a new exception to Article III (if any) should look like, one would have to identify the rationale, or need, for that exception. As the government notes (p.31 of its brief, quoting Madsen v. Kinsella), the jurisdiction of military commissions has been “adapted in each instance to the need that called it forth.”
But that only highlights the single most striking thing about the en banc briefing: As far as I can tell, the government has not offered any “need” for Congress to have “called forth” the commissions to try offenses that are not violations of the laws of war — indeed, the government does not point to any normative basis, or practical reasons, for eliminating the constitutional guarantees of a jury and tenure-protected judge in such cases. The government argues (p.29) that “Congress’s war powers include the inherent authority to create military commissions when it deems them necessary to the effective prosecution of the war.” But why, exactly, is it “necessary” to the effective prosecution of the conflict against al Qaeda to eliminate the judge and jury guarantees for inchoate conspiracy charges? The government does not say.
Peter Margulies and Judge Henderson, by contrast, have pointed to a handful of alleged practical reasons why it might be reasonable for Congress to authorize the trial of inchoate conspiracies by military commissions. Those explanations, however, are not especially persuasive.
Peter writes of the need for commissions “in a narrow range of cases when logistical or security obstacles to civilian prosecution appear unduly arduous.” Yet he does not offer even a single reason why civilian prosecution of conspiracy offenses — in particular, the existence of a jury and tenure-protected judge — would raise “logistical or security obstacles” that are not present in military commission cases. The Military Commissions Act does not, for example, contemplate military tribunals “which in the natural course of events are usually called upon to function under conditions precluding resort” to civilian juries and Article III judges, Quirin, 317 U.S. at 38–such as summary proceedings on battlefields overseas.
Peter writes the following about two earlier Article III cases:
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.
Yet it’s unclear what point Peter intends to make by pointing to the resources and diplomatic coordination necessary to bring such suspects to the United States for trial. Does he mean to suggest that if only the United States had planned to deny those persons the right to a jury and tenure-protected judge, it would have been easier to capture them, or Pakistan and Kenya would been more cooperative? The very notion is, quite frankly, preposterous. Indeed, if recent history is any measure, other nations will be much more willing to cooperate on capture, treatment and transfer matters if they are assured that the individuals will be tried in Article III courts rather than in military commissions at Guantánamo.
In an earlier stage of the al Bahlul appeal, Judge Henderson also invoked “national security” as the basis for allowing Congress to create a new exception to Article III’s protections. She wrote (numerals added):
The Congress chose the military commission over Article III court for one overriding reason: national security. Among the discussed concerns were  the potential disclosure of highly classified information;  the efficiency of military-commission proceedings;  the military’s expertise in matters of national security;  the inability to prosecute enemy combatants due to speedy-trial violations;  the inadmissibility of certain forms of evidence; and, later [in debates over the 2009 MCA],  the risk of terrorist attacks on domestic courts.
It is noteworthy that the government does not invoke any of these half-dozen reasons as a justification for trying inchoate conspiracy before military tribunals that lack the constitutional jury and judge protections. Why not?
Well, four of the six reasons simply have nothing to do with the denial or judge and jury — that is, with whether the trial is convened in a commission or an Article III court. Two of them (Nos. 1 and 5) are based upon statutory rules that, if constitutionally permissible, could be applied by Congress to both types of tribunals, or to neither. (Congress has, in fact, prescribed rules to protect classified information that are virtually the same in both tribunals. The rules for hearsay and for admissibility of “unwarned” voluntary statements do differ a bit as between the two tribunals; but, as I explain below, that difference is inapposite to the question of whether an Article III judge and jury should be afforded.) The speedy trial guarantee (No. 4) is constitutional in origin, but its application, too, does not depend on whether the tribunal has a civilian judge and jury (and, in any event, as Steve has noted, “the speedy trial issue [in Article III courts has] turned out to be a red herring, per the Second Circuit’s analysis in Ghailani”). Judge Henderson’s Reason No. 6, likewise, does not depend upon the nature of the tribunal: “the risk of terrorist attacks on domestic courts” is, if anything, a function of the location of the trial, not the presence of judge and jury; and what’s more, President Obama has already expressed a strong preference for convening any commissions trials, like Article III proceedings, in the United States. Moreover, to the extent there were evidence that some members of Congress preferred military commissions trials of inchoate conspiracy so that the trials could be convened at Guantánamo, where they might have assumed there would be less risk of terrorist attacks, surely it would be relevant to the constitutional question (whether to establish a new exception to Article III) that there’s been no experience of security problems in the dozens of al Qaeda-related trials in the United States.
That leaves Judge Henderson’s second and third reasons: the so-called “efficiency of military-commission proceedings” and “the military’s expertise in matters of national security.”
As for Reason No. 2, there was no basis for Congress to conclude that military proceedings would be more “efficient” than those in Article III courts, especially because the Military Commissions Act itself prescribes processes for commissions (including rules for admissibility of classified evidence) that are designed to emulate those in Article III courts in almost every respect. And, of course, as it’s happened, commissions proceedings have been less efficient than Article III trials, by a fair margin.
Finally, what about Reason No. 3, “the military’s expertise in matters of national security”? Perhaps it would be reasonable for Congress to assume that military officers have greater expertise than lay juries with respect to understanding the traditional, international laws of armed conflict — such officers are, after all, extensively trained in those laws of war. (That might be a pragmatic justification for the Court’s decision in Quirin that offenses against the laws of war are triable in a military tribunal.) Was there any reason, however, for Congress to conclude that lay juries and Article III judges were not up to the task of understanding inchoate conspiracies hatched by al Qaeda — or, at the very least, that such lay juries would be less capable than military officers at understanding al Qaeda conspiracies? Surely the experience in domestic courts tends to belie any such notion. Moreover, the whole premise of Article III’s protection of the jury right is the constitutional presumption that “laymen are better than specialists,” including military specialists, in determining guilt or innocence. Toth, 350 U.S. at 18. As the Court has explained (id. at 18-19):
Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions and habits. Such juries may reach completely different conclusions than would be reached by specialists in any single field, including specialists in the military field. On many occasions, fully known to the Founders of this country, jurors—plain people—have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices.
For all of these reasons, it’s not surprising that the government does not invoke the “national security” reasons cited by Judge Henderson as justifications for creating a novel exception to the Article III judge and jury protections. But if those reasons are unavailing, that begs the question: what, exactly, is the reason that military commission trials of inchoate conspiracy are “necessary to the effective prosecution of the war”? The government’s silence on this question (thus far) is telling. (The government instead relies almost exclusively on a handful of historical examples in which military tribunals have adjudicated charged offenses that were not violations of the international laws of war.)
Could al Bahlul have been tried in a military commission for his involvement in the September 11 attacks?
Presumably there were some practical, case-specific reasons for the government’s decision not to try to al Bahlul in an Article III court. For example, most of the important evidence introduced against al Bahlul was hearsay conveyed by his interrogators — al Bahlul’s own custodial statements that, even if voluntary, were almost certainly not preceded by Miranda warnings. Whereas the MCA provides for hearsay and Miranda exceptions, at least to the extent the Constitution will allow, for trials against unprivileged belligerents, Congress has chosen not to prescribe parallel exceptions for trials in Article III courts. Such statutory differences in evidentiary rules would not, in and of themselves, be a justification for denying al Bahlul the Article III protections of judge and jury — let alone to establish a new Article III exception that would apply to the many cases (such as all the prosecutions initiated against persons captured overseas in the Obama Administration) in which there are no such evidentiary hurdles. (It’s a case of apples and oranges, in other words: If the perceived “need” to is create exceptions to Miranda and/or Crawford for certain cases involving collection of evidence in the heat of an armed conflict (assuming the Constitution would permit such exceptions), the remedy for that problem is not to eliminate the protections of a civilian jury and a tenure-protected judge.)
But more to the immediate point, even if the admissible evidence would not have supported a conviction of al Bahlul in an Article III court, it is worth emphasizing that the prosecution probably could have convicted al Bahlul in a military commission, for the 9/11 attacks on civilians (which were violations of the laws of war), even if Article III does not allow military trials for inchoate conspiracy.
As noted above, the government showed that al Bahlul willfully assisted bin Laden after the September 11 attacks in a way that was designed to help make those attacks more effective for al Qaeda’s purposes — in particular, he transcribed the “martyr wills” that pilots Atta and al Jarrah had recorded before their deaths, and delivered those documents to bin Laden. (He also helped bin Laden with radio access, in order to learn of worldwide reactions to the attacks.) Presumably, then, the government could have charged al Bahlul as a principal, for the offense of killing civilians on September 11, because he abetted the offense after the fact. See 10 U.S.C. 950q(1) (under both the 2006 and 2009 MCAs), quoted above. And the commission panel could have convicted al Bahlul of such an offense if the panel had found that the 9/11 attacks on civilians occurred, and that al Bahlul assisted al Qaeda after-the-fact in making the attacks more effective (from al Qaeda’s perspective).
Such accessory-after-the-fact culpability — for an actual law-of-war offense under international law — presumably would have been constitutional, under the precedent of Ex parte Quirin, and thus would have precluded the need for the courts to decide in this case whether Congress can establish a novel war-related exception to the jury and judge protections that Article III prescribes for “[t]he trial of all [federal] crimes.”
 The last time the court of appeals heard the case en banc, Judge Henderson’s majority opinion stated that the trial included “uncontroverted” and “overwhelming” evidence that al Bahlul had conspired to kill U.S. nationals. That’s not quite right, however. Judge Henderson relied principally upon a confusing statement made by al Bahlul at a pre-trial session of the commission, in which he claimed to be “kill[ing] Americans” or to “fight America” even at that very moment: “I am not guilty. I am not guilty. I am not guilty. And what I did and I will do, and I’m doing right now, is to kill Americans–to fight–excuse me–to fight America.” The court also cited to hearsay testimony of Guantánamo interrogators that Bahlul told them during his custody that he felt no remorse about the September 11 attacks, which he considered legitimate, and that he considered U.S. taxpayers to be “fair targets.” Like many members of al Qaeda, al Bahlul also swore an oath, or “bayat,” to Osama bin Laden, knowing full well that al Qaeda was devoted to a jihad that could and did include the killing of civilians, including U.S. civilians. There’s no question, therefore, that al Bahlul was pleased about al Qaeda’s killing of Americans, and that he would have gladly assisted in such attacks if asked to do so. As far as I’m aware, however, the prosecution did not introduce any evidence of al Bahlul specifically agreeing to kill Americans, or civilians, or to take any part in such killings.
 The absence of such a judge and jury would be an Article III problem regardless of the sort of Article I tribunal that Congress established. But the constitutional concerns are even more pronounced in the context of military tribunals. To be sure, the members of the commission panels are sworn to assess the facts and the law without prejudice or preconceptions — to call it like they see it. And no doubt the members of commission panels endeavor to do just that, to the best of their ability. No matter how conscientious they may be, however, they remain acutely aware that their professional prospects are in the hands of their commanding officers, who themselves presumably are not indifferent to the results of the trial. Moreover, the principal aim of the military arm of the government is to defeat the enemy; and officers in the armed services, including those serving as judges or members of military tribunals, are ordinarily, and quite properly, devoted to using all of their resources and skills to advance that end. It is, therefore, quite a lot to ask such officers to put aside the fact that the defendants before them are devoted to using lethal force relentlessly against the U.S. armed forces themselves, and not to concern themselves at all with how the possible verdict might advance or retard the cause of defeating the enemy. This does not mean that verdicts in military trials cannot be fair and objective — far from it. My point is simply that the concerns animating Article III’s guarantee of a civilian jury are especially pronounced when military panels are asked to render a verdict on the conduct of enemy forces in an armed conflict.
 For his part, Peter Margulies argues that the offense must be “related to” a “completed war crime.” But even if the court were inclined to draw the constitutional line there, that wouldn’t be grounds for reversal in this case, because the government chose not to ask the commission panel to decide whether there had been a completed war crime to which al Bahlul’s conduct was related.
 In fact, the Court in Quirin relied primarily not on any functionalist account, but instead on the notion that Article III was not designed to preserve the jury trial right for “cases in which it was [at the founding] well understood that a jury trial could not be demanded as of right,” and the Court’s understanding that “offenses against the law of war” had “not [been] triable by jury at common law.” 317 U.S. at 40-42. The government in al Bahlul does not argue that an inchoate conspiracy such as the one at issue in al Bahlul was not triable by jury under the pre-1787 common law.