Eleven years since Congress authorized the third generation of post-9/11 Guantanamo military commissions, the substantive law governing them remains shrouded in doubt. Does Eighth Amendment capital jurisprudence limit the authority of the government to execute Guantanamo prisoners? Are all of the charges codified in the 2006 and 2009 Military Commissions Acts in fact war crimes cognizable by a military commission? Can Congress or the Secretary of Defense retroactively increase punishment for individuals subject to trial by military commission? Such uncertainty has delayed progress towards trial, impeded the negotiation and consummation of pleas, and continues to foster the sense that the military commissions have been an expensive and failed experiment in ad hoc justice.

The case of United States v. Bahlul has repeatedly presented the opportunity to resolve some of these questions—and, just as repeatedly, the D.C. Circuit has failed to do so. Last month brought the most recent disappointment, when the D.C. Circuit again refused to resolve one of the foundational questions that has remained unanswered for over a decade: Whether Congress possessed the power to codify domestic crimes such as stand-alone conspiracy in the Military Commission Acts (MCAs).

In 2008, Ali Hamza Ahmad Suliman al Bahlul was convicted of conspiracy, solicitation, and material support of terrorism by a second-generation military commission, convened under the 2006 Military Commissions Act, following a trial in which he refused to participate. Since then, the D.C. Circuit vacated Bahlul’s material support and solicitation convictions on ex post facto grounds. And while Bahlul’s conspiracy conviction has been twice overturned by a panel of the D.C. Circuit, that court sitting en banc has twice resuscitated Bahlul’s conspiracy conviction without resolving the underlying constitutional question of conspiracy’s viability before the Guantanamo military commissions. Indeed, the last time the en banc D.C. Circuit failed to resolve this question, then-Judge Kavanaugh lamented “whether conspiracy may constitutionally be tried by military commission is extraordinarily important and deserves a ‘definitive answer.’ . . . It is long past time for us to resolve the issue squarely. . . .”

The en banc court first ducked the merits of Bahlul’s conspiracy challenge in 2014 in a narrowly divided opinion that held Bahlul’s nonparticipation at his trial shunted his ex post facto challenge into plain-error review—a highly deferential standard that requires affirmation of a trial court’s determination unless it “plainly” erred in a way that affects a substantial right that would impugn the fairness, integrity, or public reputation of the proceeding. The D.C. Circuit determined that by refusing to participate in his military commission trial, Bahlul forfeited the constitutional objections that he raised on appeal to, inter alia, his conspiracy conviction. As a consequence of that forfeiture, the D.C. Circuit was limited to reviewing Bahlul’s constitutional challenge to conspiracy’s inclusion in the 2006 MCA for plain error.

The en banc court then ruled that the very uncertainty that everyone was looking to the Circuit to resolve required affirmation of Bahlul’s conviction. The absence of certainty regarding the viability of conspiracy meant that the ex post facto error Bahlul alleged was not “plain.”

In 2019, it looked like the D.C. Circuit would finally determine whether conspiracy’s inclusion in the MCA violated the Ex Post Facto clause—again in Bahlul’s case. After a remand to the Court of Military Commission Review for resentencing, Bahlul’s case returned to the circuit on appeal. Between the en banc decision in 2014 and Bahlul’s return to the court in 2019, the Supreme Court decided Class v. United States, which invalidated the D.C. Circuit precedent that the 2014 majority found mandated plain-error review in the first place. Specifically, in Class, the Court determined that, even in the context of a knowing and voluntary guilty plea, a defendant could not waive his right to challenge the constitutionality of the statute by which he was convicted. In Bahlul, the en banc majority had applied the contrary rule that constitutional challenges could be waived and forfeited if they did not go to whether a defendant could be “haled into court at all.”  Thus, Class removed the D.C. Circuit rule that had subjected Bahlul’s constitutional challenge to the heavy burden of plain error review in 2014. And, as a result, Bahlul’s second trip to the D.C. Circuit placed his ex post facto challenge to conspiracy’s inclusion in the MCA squarely before the court.

But the court ducked the question again. Writing for a three-judge panel earlier this month, Judge Rao refused to revisit the ex post facto issue, citing law-of-the-case grounds. But it’s not clear that the prudential law-of-the-case doctrine should apply to Bahlul’s case. Indeed, Bahlul’s point on appeal was that there is no law of his case. Back in 2014, precedent that has since been invalidated prevented the D.C. Circuit from determining whether Congress’ inclusion of inchoate conspiracy in the MCA violated the Ex Post Facto Clause. Now that the Supreme Court has removed that impediment, the D.C. Circuit could decide—and indeed, already should have decided—the merits of Bahlul’s constitutional challenge.

Judge Rao’s law-of-the-case rationale is particularly disappointing because the scope of the military commission’s jurisdiction is one of the most consequential questions the tribunals’ face.  Fourteen years after the MCA was passed—and twelve years after Bahlul first challenged his conspiracy conviction—we still do not know whether military commissions may constitutionally try an offense that has become a cornerstone of Guantanamo military commissions proceedings.

Military commissions prosecutors have charged conspiracy in 22 of the 27 cases in which charges were sworn or referred under the 2006 or 2009 Military Commissions Acts. That means 82% of the defendants in these military commissions face or have faced conspiracy charges. Conspiracy was charged in all but two of the military commissions completed under the 2006 MCA. And conspiracy is currently charged in all seven of the active military commissions, including the three cases presently on appeal.

The continuing uncertainty surrounding conspiracy’s viability before the Guantanamo military commissions significantly affects the strategic considerations of the prosecution, the defense, and the Convening Authority. In the military commission convened to try the five co-defendants that stand accused in the attacks of September 11, 2001, for example, the government’s primary trial strategy may be built around conspiracy. Specifically, it appears the prosecution may intend to prove conspiracy and then lean on that charge to do the work of proving the other six offenses charged. If that’s correct, and if conspiracy is not viable, then the prosecution’s trial strategy in the most important pending case will need to be revisited.

The potency of conspiracy as a prosecutorial tool also necessarily affects defense strategy by, inter alia, encouraging pleas in the face of otherwise weak prosecution cases. It also skews defense strategy by focusing litigation and investigatory resources on negating a common plan or developing a defense of abandonment, rather than on attacking the elements of independent crimes that are more difficult to prove.

Finally, a determination that conspiracy is or is not viable in the Guantanamo military commissions will alter the willingness of the Convening Authority to refer charges in the few cases that reportedly remain under consideration, as well as to dispose of the ongoing military commissions through plea agreements. For example, if conspiracy were removed from the prosecutors’ toolkit, the Convening Authority, which superintends the military commissions defense and prosecution—and is responsible for the resources of each—may be once again moved to consider pleas as a way to bring some closure to the seemingly interminable military commission trials. But this requires clarity on available charges that the D.C. Circuit has been unwilling to provide to date.

Regardless of outcome, answering the question the Bahlul case has posed for the past decade will improve the standing of the military commissions by providing some much-needed certainty over their jurisdiction and their decisional law. It is shocking that, twelve years after trial, a defendant’s conviction remains in place as a result of the indeterminate viability of the sole surviving charge by which he was convicted. It is more shocking still that the thin reed of that defendant’s surviving conviction carries much of the weight of survivability of the system itself.  But uncertainty over elementary—even foundational—points of law is at this point a persistent attribute of the Guantanamo military commissions. Let us hope that Bahlul petitions for rehearing en banc and that his third time is the charm necessary to resolve conspiracy’s status.

Note: The views expressed do not reflect the views of the Department of Defense, the United States Government, or any agency or instrumentality thereof.

IMAGE: WASHINGTON, DC – FEBRUARY 05: Neomi Rao, U.S. President Donald Trump’s nominee to be a U.S. Circuit Court of Appeals judge for the District of Columbia Circuit, testifies during a Senate Judiciary confirmation hearing on Capitol Hill on February 5, 2019 in Washington, DC. Rao filled the seat left vacant by Brett Kavanaugh after Kavanaugh joined the Supreme Court. (Photo by Zach Gibson/Getty Images)