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Today’s En Banc D.C. Circuit Ruling in Al Bahlul…

163 pages later, we’re back where we started. Six of the nine judges on the en banc D.C. Circuit (with Chief Judge Garland and Judge Srinivasan not participating) voted to affirm Al Bahlul’s military commission for inchoate conspiracy, but, as seemed likely after the oral argument, could not agree as to why. Four (Brown, Griffith, Henderson, and Kavanaugh) would answer the big constitutional question (can military commissions try non-international war crimes) in the affirmative. Two (Millett and Wilkins) would affirm Al Bahlul’s conviction on much narrower (and case-specific) grounds (for Millett, plain error; for Wilkins, the rather odd conclusion that Al Bahlul’s conviction wasn’t for inchoate conspiracy, but for the crime of conspiracy to assist in the 9/11 attacks, which has a close enough connection to international law). And three (Pillard, Rogers, and Tatel) believe that the commission lacks the constitutional authority to try offenses like inchoate conspiracy.

There’s a lot that can (and likely will) be said about each of these opinions–even though the two big ones (Kavanaugh’s concurrence and the joint dissent) mostly rehash the arguments that have been made earlier in this litigation, and so there may not be much new to say about these issues. But for now, I just want to reiterate what I wrote in December about the consequences of this kind of fractured result:

[It] would have the effect of (1) leaving al Bahlul’s conviction intact; (2) doing nothing to settle the commissions’ power to try non-international war crimes in other cases; and (3) in the process, perhaps insulating this particular case (and, for the time being, this question) from the Supreme Court’s attention, since the stakes of such a result will be far murkier…

All of this leads me to ask: At some point, wouldn’t resolution of the Article III question actually be useful for the military commissions (and not just for we who write about them)? Or is this all just an elaborate game to play out the string — and, as such, a waste of a whole lot of time, energy, and judicial resources?

The more the D.C. Circuit hands down rulings like this (and like the abstention decision in Al-Nashiri), the more I think it’s the latter. Maybe, contra what I feared in December, the Supreme Court will disagree?


About the Author

is co-editor-in-chief of Just Security. Steve is a professor of law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).