The U.S. Court of Appeals for the D.C. Circuit, sitting en banc (absent Judge Srinivasan, who is recused) just finished hearing about 90 minutes of oral argument in the al Bahlul case. [UPDATE: Audio already available here!] I typically avoid making predictions based upon oral argument in close and important cases such as this, especially in the D.C. Circuit, largely because I’ve found that the judges’ questions are not necessarily a good predictor of what they might decide, and why. The judges on this court, in particular, often ask hard questions of both sides, even if they are inclined to rule one way or the other. And today’s argument was no exception. I do, however, think it’s safe to say one thing here: Several of the judges on the court, perhaps a majority, are uneasy about the prospect of issuing a broad decision, one way or the other — for example, to hold that Congress cannot authorize any domestic-law offenses to be tried in a military commission, or to hold that Congress can authorize any and all such offenses to be tried in a commission, as long as they are committed by an enemy belligerent in connection with hostilities. I think it’s not going out on much of a limb to predict that at least some of the judges will avoid embracing those two polar positions, either by deciding the case on “plain error” review (something I don’t think would be proper, for the reasons expressed by Judge Kavanaugh at oral argument today), or by issuing a more case-specific ruling that al-Bahlul’s conspiracy charge, in particular — because of the unique facts of the case and/or the prosecution — either can or cannot be constitutionally adjudicated in a military commission.

Having said that, I think the most interesting and important questions raised by the bench today were precisely the two I flagged yesterday — namely, (i) what would or should be the scope of a new domestic-law-offense exception to Article III, if any?; and (ii) what is the justification for removing the judge and jury protections of Article III in that hypothetical set of cases? I’ll start with the latter question, because less was said about that at argument — but what was said was telling, and potentially quite important.

What’s the justification for trying such cases in military commissions?

Judges Pillard and Rogers emphasized — and several other judges also mentioned — that an inchoate conspiracy to commit war crimes (including attacks on civilians in an armed conflict), such as the one here, could have been tried in an Article III court — indeed, as Chief Judge Garland said, it happens every day. If that is so, Judge Rogers asked, then what is the need — the justification — for using a military commission rather than an Article III court?

Deputy Solicitor General Gershengorn had a single response, if I understood him correctly, to the question of what value is served by taking such cases out of Article III courts: that the rules of Miranda and Crawford do not apply in military commissions. So, for example, perhaps a case such as Bahlul’s could not have been tried in a Article III court, because his custodial admissions, which were the heart of the prosecution’s case, were not preceded by Miranda warnings, and so even if those statements were voluntary (which they would have to have been, even to be introduced in the commissions trial), they could not have been introduced in the case-in-chief in an Article III court. And, for what it’s worth, my sense is that Mirandaand Crawford are, in fact, the principal reasons why prosecutors sometimes opt for military commissions rather than Article III courts when deciding where to try detainees captured during the Bush Administration. (As I explained here, the practice in the Obama Administration has been to anticipate and prepare for Article III trials whenever al Qaeda forces are captured.)

As I explained yesterday, however, this is hardly a strong justification for trying such cases in a military commission, and thereby denying the constitutional guarantees of a civilian jury and a tenure-protected Article III judge. Indeed, this particular problem is merely a function of a legislative choice that is unrelated to the judge and jury protections of Article III. Whereas Congress included in the MCA a Miranda exception for certain voluntary statements made by alien enemy belligerents (and certain hearsay exceptions, as well), it has not prescribed a parallel exception for trials of alien enemy belligerents in Article III courts. (The constitutionality of such an exception under the Fifth Amendment would not turn on which sort of tribunal is hearing the case — either it’s constitutional in both tribunals or in neither.) Such a statutory difference in evidentiary rules does not justify denial of the Article III protections of judge and jury. As I wrote yesterday, this is “a case of apples and oranges”: 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 to codify such exceptions, not to eliminate the protections of a civilian jury and a tenure-protected judge. (Indeed, wouldn’t it generally be preferable for an Article III, tenure-protected judge, rather than a military officer, to decide questions such as whether the statement was made voluntarily, or whether and to what extent the Fifth Amendment allows admission of voluntary but unwarned statements by alien enemy belligerents?)

Scope of the proposed exception?

Much of the oral argument was devoted to the related questions of (i) the limits of the government’s proposed Article III exception for domestic-law offenses; and (ii) how far al Bahlul’s own case actually deviated from previously recognized exceptions to Article III.

As I wrote yesterday, the government’s principal argument is 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). Judge Tatel, however, pushed back hard on this “test,” because, as he explained, it would appear to permit military commission trials of virtually all conspiracies hatched by members of al Qaeda, ISIL, and other enemy forces, including those hatched here in the United States, all of which are regularly adjudicated in Article III courts. (It would also encompass an even larger number of “material support” cases involving enemy belligerents that are frequently tried in Article III courts. The MCA itself does not provide for jurisdiction over U.S. persons, but I don’t understand the government’s Article III theory to be limited to aliens.)

Deputy SG Gershengorn acknowledged that the court could sustain the conviction in this case on a narrower theory of an Article III exception, and Judge Kavanaugh actually proposed an additional, third condition, one that is suggested at page 51 of the government’s brief: that the offense is one that has “traditionally been triable by military commissions.” On Judge Kavanaugh’s apparent view of the history, this would encompass inchoate conspiracies to commit war crimes; and the court would not need to go further than to rule that those charges can be brought in commissions.

There is, of course, a great deal of dispute among the parties, and the amici, about what the relevant history shows: The government relies primarily on four cases — the Civil War trials of Henry Wirz and George St. Leger Grenfel; the World War II conspiracy conviction of the saboteurs in Ex parte Quirin; and the trial at issue in Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956). (The Lincoln assassination case does not even come within the government’s own exception, as it did not deal with enemy belligerents.) As all concede, however, the Article III issue was not adjudicated with respect to any of the conspiracy convictions in those cases. Moreover, as Chief Judge Garland suggested today, the historical question that ought to be relevant is not so much what has occurred in four or so cases over 200+ years, but instead whether conspiracy to commit war crimes was, or would have been, triable by juries at the common law as of 1789. And, as Judge Garland noted, we don’t really have much of an answer to that question, because there don’t appear to have been any trials for inchoate conspiracies to commit war crimes in any sort of tribunal — civilian or military — in the Eighteenth Century.

In light of the dearth of historical precedents (one way or the other), should the court defer to Congress’s decision to eliminate the judge and jury protections where all three conditions (enemy belligerent; conduct related to hostilities; on charges with some historical pedigree) are met? As Judge Millett emphasized at argument today, this arguably would not be a dramatic step beyond other categories of cases that Congress can authorize to be tried in military commissions, including cases that come very close to describing al Bahlul’s — such as using conspiracy as a mode of establishing culpability as a principal for actual international war crimes; using aiding-and-abetting for the same; or even, perhaps, trying certain sorts of stand-alone conspiracies that arguably have been recognized as international-law offenses, such as conspiracies to commit genocide or a war of aggression.

In this regard, it is noteworthy that Judge Pillard asked Deputy Solicitor General Gershengorn why the prosecution simply did not charge al Bahlul with the actual, completed war crimes of the September 11 attacks, on the basis of his conduct to aid and abet the attacks after-the-fact. The Deputy SG did not know why that particular charging decision was not made; but he did not dispute Judge Pillard’s suggestion that such a charge, and conviction, in the military commission could have avoided the Article III question the court is now faced with. (For more on this prospect, see the end of my post from yesterday.)

Which way does this cut? If the government can so readily try such conduct in Article III courts, and can so readily bring charges based on this or related conduct in military commissions, for actual war crimes, does that argue for or against what some judges might see as a modest new Article III exception? That appears to be the primary question the D.C. Circuit judges are struggling with.

Judge Kavanaugh, interestingly, suggested one consideration that would appear to cut against recognizing a new exception: The text of Article III, he noted, admits of no exceptions to the judge and jury guarantees for federal crimes. Yet the Supreme Court has recognized a small handful of implicit exceptions, mostly based on the common law at the founding — including the trial of petty offenses, courts-martial of members of the armed forces, and violations of the international laws of war. Shouldn’t the judiciary be loath, he suggested, to recognize further such nontextual exceptions, absent good reason to do so? (And, if so, I would add, it’s not obvious that there is any such compelling reason here, as I explained above.)

One other, related point: Judge Millett and other judges asked about cases in which the government wishes to bring several related charges, some of which are for law-of-war offenses, but others of which (e.g., conspiracy) are for domestic-law offenses. Wouldn’t it make much more sense, some judges wondered, to try all the charges together, rather than to spin off the conspiracy charge for trial in a separate tribunal? The answer to this is, of course, yes — it would make much more sense to try all such charges together in one trial. Which is why the government regularly does so . . . in Article III courts.