I largely agree with Steve’s excellent post on the D.C. Circuit’s Hamdan decision today. In particular, and most importantly, I agree that the logic of the opinion strongly indicates that military commissions will likely not be available to try allegations of conspiracy based on pre-2006 conduct. While that is not a holding of today’s decision by any means, the judges who ruled in Hamdan are all deeply aware that Bahlul is pending and of the implications of their reasoning for that case. Furthermore, I agree with Steve that while the question of whether conspiracy is a war crime is more complicated than the material support question, the logic of this decision on material support may well compel a similar outcome with respect to conspiracy. For that reason alone, I suspect that an appeal is probably likely—though I doubt it will produce a different outcome than the D.C. Circuit handed down today.
That suspicion provokes an interesting question about the future of military commissions: What would their long-term role look like in a world in which material support and conspiracy were both unavailable retrospectively as charges but available as charges prospectively? To put the point simply, this environment would accentuate the question—already looming before us—of whether commissions are really just a legacy tribunal to cover 9/11-oriented crimes or whether they represent an instrument with ongoing application in the future.
Among those who don’t oppose commissions in principle, there are really two ways to look at them. One is to see them as an alternative tribunal in general for prosecuting enemy unprivileged belligerents for war crimes when, for whatever reason, one does not want to try them federal courts. This is the way the Military Commissions Act is written, but it’s not really the way the institution has been used in practice. All of the defendants currently, or ever, before commissions have been suspected Al Qaeda people detained in the few years after 9/11. And the current administration, at least, has shown little interest—except, notably, with respect to Ali Musa Daqduq—in using commissions to handle new captures. This has given rise to a second possible way to think about commissions: that notwithstanding the way the law is written, they are really a specialized post-9/11 tribunal—sort of like a modern Nuremberg tribunal—and that they will die out once the 9/11-era cases run their course.
If you deprive a specialized post-9/11 tribunal of material support and conspiracy as charges, you make it far more specialized. In truth, you probably limit it to very senior Al Qaeda figures. Conspiracy and material support are, after all, the bread and butter charges with which prosecutors would go after smaller fish—at least, those smaller fish who had not individually participated in a killings or bombings. I don’t know how much their removal from the military commission prosecutors’ toolbox would shrink the already-pretty-small cadre of Guantanamo detainees who could face charges in commission. But I am certain it would have a non-trivial impact on the caseload. It might, in fact, turn a post-9/11 tribunal into something closer to a tribunal focused almost entirely on trying crimes related to the 9/11 and Cole attacks—that is, unless someone were to revisit the prospective use of military commissions for future captures. If one went that route, the broader array of charges would suddenly become available again.
This choice—between treating commissions as a mechanism for a small set of legacy prosecutions or as a broader and more forward-looking mechanism—is already before us. But take away conspiracy and material support retrospectively and it becomes more acute. Is this institution really just about KSM and Nashiri? Or is it broader and more permanent than that?