Why the D.C. Circuit Can’t Really Duck the Article III Issue in Al Bahlul

As one of those who spends parts of his Tuesday and Friday mornings trolling PACER for new D.C. Circuit rulings (which appear there before they’re posted on the Court of Appeals’ public website), two of the decisions for which I’m especially keeping an eye out are the en banc D.C. Circuit’s ruling in Al Bahlul IV (about whether Article III prevents the Guantánamo military commissions from trying domestic offenses, argued before the en banc court on December 1), and the panel ruling in Al-Nashiri II (about whether the district court should have reached the merits of a defendant’s challenge to the military commissions’ jurisdiction over pre-9/11 offenses, argued on February 17). I’ve written about both of these cases (and these issues) at some length previously, and won’t rehash those analyses here. Rather, I wanted to make one point about how these cases relate to each other — a point that may go a long way toward underscoring the potential stakes of each ruling once it comes down. 

In a nutshell, there is another case currently pending before the military commissions — that of Abd al Hadi al Iraqi — that also raises the critical Article III / domestic offense question currently before the en banc D.C. Circuit in Al Bahlul IV (and, as in Al Bahlul, through the specific lens of a conspiracy charge). Unlike Al Bahlulal Iraqi is still in pre-trial proceedings, and so there’s no possible argument that the defendant has waived his challenge (or that, as such, it would ultimately be reviewed only for plain error). So even if the en banc D.C. Circuit punts in Al Bahlul (for example, by holding that the defendant did and could waive the Article III argument, and that it’s not “plain” Article III error for the commissions to try domestic offenses), the issue will likely come back up (through de novo review) in al Iraqi. And that’s why Al-Nashiri II is so important: If the panel holds that jurisdictional challenges like Nashiri’s can be heard through pre-trial habeas petitions, then that will not only clear the way for the district court to reach Nashiri’s challenge to the commissions’ jurisdiction over pre-September 11 offenses; it would almost certainly open the door to a pre-trial habeas petition from al-Iraqi raising the Article III question — and putting the issue right back before the D.C. federal courts.

Thus, even if the en banc Court of Appeals finds a way to duck the Article III issue in Al Bahlul IV, it will likely return through the (de novo) lens of al Iraqi. And if Al-Nashiri II reverses the district court on abstention, then it will return fairly quickly through a pre-trial habeas petition in al-Iraqi.

I doubt this kind of calculus will have led any of the D.C. Circuit’s judges to vote differently in Al Bahlul IV, but if nothing else, it underscores that, even if the headline of that ruling when it (eventually) comes down is the Court of Appeals’ non-resolution of the vital Article III question, such relief may only be short-lived, especially if Al-Nashiri II comes out the way it seemed to be leaning at oral argument… 

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).