In a footnote to his concurring opinion in the en banc D.C. Circuit’s October 2016 ruling in al Bahlul v. United States, D.C. Circuit Judge Brett Kavanaugh stressed the significance of the question raised in that case, i.e., whether military commissions at Guantánamo may constitutionally try domestic offenses like standalone conspiracy:

The question of whether conspiracy may constitutionally be tried by military commission is extraordinarily important and deserves a “definitive answer.” The question implicates an important part of the U.S. Government’s war strategy. And other cases in the pipeline require a clear answer to the question. This case unfortunately has been pending in this Court for more than five years. It is long past time for us to resolve the issue squarely and definitively.

Alas, the D.C. Circuit did not resolve the issue “squarely and definitively,” instead fracturing over the grounds on which a 6-3 majority affirmed Bahlul’s conspiracy conviction. But Bahlul has now petitioned for certiorari before the Supreme Court, along with one of the defendants facing pending military commission charges–Abd al-Rahim al-Nashiri. And as the National Institute of Military Justice argues in a pair of amicus briefs filed today in support of certiorari in both al Bahlul and al Nashiri (on which I’m counsel of record), Judge Kavanaugh had it right—15 years into the military commission experiment, over 10 years after the enactment of the Military Commissions Act (MCA), and almost nine since the commissions’ first convictions, the time has long-since passed for the Supreme Court to settle the validity of the commissions’ jurisdiction. 

I.  The Road to al Bahlul and al Nashiri

Military commissions have a long—if complicated—history under American law, dating all the way back to the Mexican War. Although the Supreme Court famously rejected the use of such tribunals, at least away from combat zones, during the Civil War, it clarified, during World War II, that off-battlefield military trials of enemy soldiers were permissible, at least when (1) Congress had authorized the proceedings; and (2) the soldiers were enemy belligerents charged with “offenses against the law of war.” Pursuant to that understanding, the United States convened hundreds of military commission trials of Axis soldiers during and after the war—and led the way in chartering international military tribunals to try those most responsible for the European and Pacific conflicts.

From the start, though, the Guantánamo commissions have departed in important ways from the World War II-era precedents. Most importantly, they have purported to try a range of crimes not recognized as “offenses against the law of war,” including conspiracy, “providing material support to terrorism,” and solicitation. This shift has been out of necessity; because so few of the Guantánamo detainees can be, and have been, directly tied to specific terrorist attacks (and, as such, to clear international war crimes), domestic charges stemming from the detainees’ more general affiliation with al Qaeda (and often unrelated to combat activities) have been the only ones available to government prosecutors in almost all of these cases.

In 2006, the Supreme Court invalidated the first iteration of the Guantánamo trials on the narrow ground that Congress had not authorized such a departure from prior precedent. Congress responded by doing exactly that, providing such authorization through a statute—the Military Commissions Act—that expressly approved military trials of non-citizen terrorism suspects for a range of both international war crimes and domestic offenses, including offenses that were committed before the Act was passed. Congress thereby solved the statutory problem, but, in the process, raised a series of novel constitutional questions.

At first, the courts responded narrowly, ruling that, at least for conduct that pre-dated the statute, it was a violation of the Constitution’s Ex Post Facto Clause for Congress to authorize military trials for non-international war crimes—since it would not have been clear at the time of the defendants’ conduct that their actions could subject them to military trial. As a result, all or parts of three of the eight convictions that the commissions have secured to date were vacated on appeal (and three more still remain vulnerable to vacatur today).

II.  al Bahlul and the Article III Question

But those rulings left open the far more significant constitutional issue, i.e., whether the commissions could try domestic offenses when the defendant’s conduct post-dated the enactment of the Act, or whether the Constitution more generally limits the jurisdiction of military commissions to international war crimes. That’s the question that has finally reached the Supreme Court in al Bahlul v. United States. Al Bahlul, an al Qaeda propagandist who has been compared (somewhat sensationally) to Joseph Goebbels, was convicted by a military commission of three domestic offenses, two of which were thrown out on appeal. On the third charge—conspiracy—the D.C. federal appeals court fractured: Four judges ruled that military commissions can try such purely domestic offenses; three disagreed; and two would have resolved the case (in the government’s favor) on narrower, case-specific grounds. Although this divided ruling affirmed al Bahlul’s conspiracy conviction, the absence of a majority rationale meant that the ruling set no precedent beyond al Bahlul’s case—leaving unanswered whether the commissions can try domestic offenses in new cases going forward.

That question has taken on a newfound importance in recent weeks, thanks to comments from Trump administration officials portending a reinvigoration of the Guantánamo tribunals—at least once there is resolution of what Attorney General Sessions referred to as “the legal complications that the Obama administration seemed to allow to linger and never get decided.” Putting aside who’s to blame, Sessions has a point: part of why the commissions have moved so slowly, and why so many questions about their legitimacy remain, is because there is still uncertainty about their basic jurisdictional conceit. al Bahlul presents the Supreme Court with an opportunity to resolve that uncertainty—and, with it, the underlying legitimacy of almost all of the post-September 11 military commission project. And as the NIMJ amicus brief filed today argues, it is an appropriate vehicle for doing so, since neither of the narrower, case-specific grounds offered by the concurring judges in the D.C. Circuit stand up to close scrutiny.

But another reason for using al Bahlul to resolve the Article III question is because, thanks to the D.C. Circuit’s decision in another military commission case—al Nashiri—this may be the Justices’ last opportunity to do so for some time.

III.  al Nashiri and the Abstention Problem

Unlike al Bahlul, al Nashiri has been charged with offenses that more closely resemble international war crimes. The problem in his case is when (and against whom) the acts occurred—including the October 2000 attack against the USS Cole, and the 2002 bombing of the French tanker M/V Limburg. The MCA itself limits the commissions’ jurisdiction to offenses committed during “hostilities,” which the statute elsewhere defines as “any conflict subject to the laws of war.” So the question in al Nashiri is whether either of those terrorist attacks took place in a “conflict subject to the laws of war,” i.e., whether we were at war with al Qaeda in October 2000, and whether the French were at war with al Qaeda in 2002.

Rather than reach the merits, however, a divided panel of the D.C. Circuit abstained from resolving al Nashiri’s habeas petition, invoking the doctrine of “Councilman abstention,” under which civilian courts usually leave challenges to military trials to the military courts in the first instance. As the NIMJ amicus brief explains, there are compelling reasons why (1) Councilman abstention should not apply to the military commissions at all; and (2) even if it applies to some claims, al Nashiri’s challenge to the subject-matter jurisdiction of the military commissions is the exact kind of claim for which abstention is inappropriate, since he is claiming the very essence of a “right not to be tried.”

But what is perhaps most interesting about these two briefs is what they have in common: In both cases, the underlying point is the one Judge Kavanaugh flagged in al Bahlul—that it’s long-past time for the courts to settle the jurisdictional bounds of the military commissions, one way or the other, rather than allowing the commissions to continue to operate under a cloud of illegitimacy, as their critics continue to claim that they are exercising jurisdiction forbidden by the MCA itself and/or the Constitution. In al Bahlul, the jurisdictional issue is structural; in al Nashiri, it’s more specific, but also more immediately fraught, since the Petitioner faces the spectacle of a capital trial that might be vacated on appeal—but perhaps as much as a decade from now. But both cases present examples of the same phenomenon—the need for the final arbiter of the meaning of federal law to answer the most significant questions lurking over the Guantánamo military commissions.

There’s no question that, if the Justices really don’t want to take these cases, they can find lots of plausible reasons to deny certiorari in either. But both NIMJ amicus briefs try to drive home the point that it’s in everyone’s interests, including the government’s, for the Supreme Court to finally weigh in regardless of how it answers the questions presented in both cases. Here’s hoping the Justices agree…

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