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A Rough Overview of Today’s Ruling in Al-Bahlul

By and
Monday, July 14, 2014 at 7:45 PM

This morning, the full D.C. Circuit resolved military commission defendant Ali Hamza Ahmad Suliman al-Bahlul’s’s long-running appeal, in split fashion: by rejecting al Bahlul’s challenge to his conspiracy conviction, but also by vacating his convictions for material support and solicitation. Now it seems additional arguments regarding the conspiracy count will be considered further, by the same three-judge D.C. Circuit panel that took up al-Bahlul’s case initially; after panel review, the entire case will be returned to the Court of Military Commission Review, for evaluation of the effect, if any, of the vacaturs upon al-Bahlul’s life sentence.

The quite complex decision encompasses 150 pages and five opinions. They touch on al-Bahlul’s preservation of key arguments on appeal, the proper reading of the MCA, the application of the Constitution’s federal ex post facto clause, and other issues. With these in mind, we below offer a quick and dirty summary of each opinion in Al-Bahlul v. United States.  (The post assumes some familiarity with this case’s facts and procedural development; additional background can be found here.)

The Majority Opinion

Judge Henderson penned the opinion for the court. After reciting the facts, it makes an important, two-part procedural move: the opinion first concludes that, his attorneys’ claims to the contrary, al-Bahlul had not raised his principal arguments on appeal below, and thus forfeited them; and secondly, that as a consequence, the en banc court would review the case pursuant to the more exacting, “plain error” standard, and not according to the “de novo” standard that usually governs appellate courts’ evaluation of legal issues.

Part one turns on the factual record, which the majority parses in a fashion adverse to al-Bahlul:

Applying these principles here, we conclude that Bahlul forfeited the arguments he now raises. He flatly refused to participate in the military commission proceedings and  instructed his trial counsel not to present a substantive defense. Although he objected to the commission’s authority to try him, his objection was couched entirely in political and religious terms. He disclaimed guilt and contended that “what [he] did was not a crime.” Trial Tr. 175. But context makes clear that Bahlul argued that his acts were not criminal because they were inspired by religious fervor. See id. at 175–76. After claiming that the United States had “put on the side[] the meaningless American laws” and “legislated new laws” for “the planet Earth,” he explained that he “believe[s] that no one has the right in the land to set laws for the people, the right of legislating laws[] is absolutely to Allah, the All Mighty.” Id. at 23–24. Bahlul did ask a “legal question” about whether the “law here by you stems from the action, before action, or post action,” id. at 104, but the military judge could not ascertain what Bahlul was asking and Bahlul did not elaborate. Bahlul’s objection to the commission’s authority was unquestionably “too general to have alerted the trial court to the substance of [his] point.” United States v. Bolla, 346 F.3d 1148, 1152 (D.C. Cir. 2003) (Roberts, J.)

The court thus proceeds to review the case for plain error only, rejecting the petitioner’s further objection—that military commission rules in fact shielded his case-critical arguments from claims of forfeiture or waiver—in a footnote.

The standard of review established, the majority opinion turns to retroactivity, concluding that MCA “unambiguously authorizes al-Bahlul’s prosecution for the charged offenses based on pre-2006 conduct.”  Important to that determination was the parallel process of statutory analysis in the Supreme Court’s Boumediene decision:

In enacting the military commission provisions of the 2006 MCA, the Congress plainly intended to give the President the power which Hamdan held it had not previously supplied—just as the 2006 MCA clarified that in fact the Congress did intend section 7(b)’s ouster of habeas jurisdiction to apply to pending cases. The legislative history confirms this view. See Boumediene, 553 U.S. at 739 (“The Court of Appeals was correct to take note of the legislative history when construing the statute . . . .”). Supporters and opponents of the legislation alike agreed that the 2006 MCA’s purpose was to authorize the trial by military commission of the 9/11 conspirators. And because the 9/11 conspiracy took place long before 2006, the statute could accomplish its explicit purpose only if it applied to preenactment conduct. As the Court itself made clear, “we cannot ignore that the [2006] MCA was a direct response to Hamdan’s holding.” Boumediene, 553 U.S. at 739.

Reading the MCA in this context and given the unequivocal nature of its jurisdictional grant, we conclude the 2006 MCA unambiguously authorizes Bahlul’s prosecution for the charged offenses based on pre-2006 conduct.

(In this respect, the en banc court overrules a key statutory holding by a D.C. Circuit panel  in Hamdan II.)

The statute on point thus applies retroactively; the question then becomes whether Congress can get away with that sort of thing vis a vis al-Bahlul—that is, whether the court must undertake an ex post facto analysis.  (The full court says it assumes, but does not decide, that the federal Ex Post Facto clause applies to Guantanamo detainees.) On that point, the majority goes on to “reject Bahlul’s ex post facto challenge to his conspiracy conviction for two independent and alternative reasons,” both of them informed by the rather forgiving “plain error” standard:

First, the conduct for which he was convicted was already criminalized under 18 U.S.C. § 2332(b) (section 2332(b)) when Bahlul engaged in it. It is not “plain” that it violates the Ex Post Facto Clause to try a pre-existing federal criminal offense in a military commission and any difference between the elements of that offense and the conspiracy charge in the 2006 MCA does not seriously affect the fairness, integrity or public reputation of judicial proceedings. Second, it is not “plain” that conspiracy was not already triable by law-of-war military commission under 10 U.S.C. § 821 when Bahlul’s conduct occurred.

On the first reason, the majority agreed with the government’s position on a domestic criminal law statute regarding foreign conspiracies, 18 U.S.C. § 2332(b).

Although the 2006 MCA post-dates Bahlul’s conduct, section 2332(b) has long been on the books, making it a crime to, “outside the United States,” “engage[] in a conspiracy to kill[] a national of the United States.” 18 U.S.C. § 2332(b); see Omnibus Diplomatic Security and Antiterrorism Act of 1986, Pub. L. No. 99-399, § 1202(a), 100 Stat. 853, 896.Section 2332(b) is not an offense triable by military commission but, the Government argues, “[t]he fact that the MCA provides a different forum for adjudicating such conduct does not implicate ex post facto concerns.” E.B. Br. of United States 67. We agree.

On the second reason, the majority points to historical practices—most importantly, the trial of the conspirators in Lincoln’s assassination, and the trial of the infamous Quirin saboteurs—to illustrate that any Ex Post Facto Clause error in trying Bahlul was not “plain”—or, said differently, so obvious as to require intervention by the appellate court. As readers know, a key was Section 821 of the U.S. Code—a statute which, unlike the MCA, existed at the time of al-Bahlul’s alleged actions, and which (among other things) authorizes commission jurisdiction over people and offenses that may be tried by commission by statute or by the “law of war.”

As seven justices did in [Hamdan v. Rumsfeld] we look to domestic wartime precedent to determine whether conspiracy has been traditionally triable by military commission. That precedent provides sufficient historical pedigree to sustain Bahlul’s conviction on plain-error review.

. . .

[T]he Lincoln conspirators’ trial was a matter of paramount national importance and attracted intense public scrutiny. Thus, when the Congress enacted section 821’s predecessor—and “preserved what power, under the Constitution and the common law of war, the President had had before 1916 to convene military commissions,” Hamdan, 548 U.S. at 593 (majority)—it was no doubt familiar with at least one high-profile example of a conspiracy charge tried by a military commission. Because of the national prominence of the case and the highest-level Executive Branch involvement, we view the Lincoln conspirators’ trial as a particularly significant precedent.

Also noteworthy is the World War II-era military commission trial of several Nazi saboteurs who entered the United States intending to destroy industrial facilities; they were convicted of, inter alia, conspiracy to commit violations of the law of war. See Quirin, 317 U.S. at 21–23. Although the Supreme Court resolved the case on other grounds and therefore did not review the validity of the conspiracy conviction, the case remains another prominent example of a conspiracy charge tried in a law-of-war military commission. . . . Finally, during the Korean War, General Douglas MacArthur ordered that persons accused of “conspiracies and agreements to commit . . .violations of the laws and customs of war of general application” be tried by military commission.

. . .

[O]ur review is for plain error. We think the historical practice of our wartime tribunals is sufficient to make it not “obvious” that conspiracy was not traditionally triable by law-of-war military commission under section 821. Olano, 507 U.S. at 734. We therefore conclude that any Ex Post Facto Clause error in trying Bahlul on conspiracy to commit war crimes is not plain. See United States v. Vizcaino, 202 F.3d 345, 348 (D.C. Cir. 2000) (assuming error to decide it was not plain).

So much for conspiracy, which survived the less rigorous “plain error” review by the full appeals court.  Not so for the other two offenses, material support and solicitation, the convictions for which are then vacated essentially for want of historical evidence.  The government’s case, writes the majority, had relied on Civil War-era field prosecutions—which hardly compare to precedents like the Lincoln assassination or the Nazi saboteurs.

A different result obtains, however, regarding Bahlul’s conviction of providing material support for terrorism. The Government concedes that material support is not an international law-of-war offense, see Oral Arg. Tr. 15; Panel Br. of United States 50, 57, and we so held in Hamdan II, 696 F.3d at 1249–53. But, in contrast to conspiracy, the Government offers little domestic precedent to support the notion that material support or a sufficiently analogous offense has historically been triable by military commission Although Bahlul carries the burden to establish plain error, see United States v. Brown, 508 F.3d 1066, 1071 (D.C. Cir. 2007), we presume that in the unique context of the “domestic common law of war”—wherein the Executive Branch shapes the relevant precedent and individuals in its employ serve as prosecutor, judge and jury—the Government can be expected to direct us to the strongest historical precedents. What the Government puts forth is inadequate.

. . .

The upshot is that the Civil War field precedent is too distinguishable and imprecise to provide the sole basis for concluding that providing material support for terrorism was triable by law-of-war military commission at the time of Bahlul’s conduct.  We therefore think it was a plain ex post facto violation—again, assuming without deciding that the protection of the Ex Post Facto Clause extends to Bahlul, see supra pp. 26–27—to try Bahlul by military commission for that new offense. See Collins, 497 U.S. at 42–43. The error is prejudicial and we exercise our discretion to correct it by vacating Bahlul’s material support conviction.

. . .

We also conclude that solicitation of others to commit war crimes is plainly not an offense traditionally triable by military commission.The Government concedes it is not an international law-of-war offense. See Oral Arg. Tr. 15; Panel Br. of United States 50, 57.

. . .

As noted, we are skeptical that field orders can be the sole basis for military commission jurisdiction over a particular offense. See supra p. 46. Moreover, the two field orders discussed fall far short of meeting any showing we would require. Because solicitation to commit war crimes was not an offense triable by law-of-war military commission when Bahlul’s conduct occurred, it is a plain ex post facto violation—again, assuming without deciding that the protection of the Ex Post Facto Clause extends to Bahlul, see supra pp. 26–27—to try him by military commission for that new offense. See Collins, 497 U.S. at 42–43. The error is prejudicial and we exercise our discretion to correct it by vacating Bahlul’s solicitation conviction.

Finally, the majority “remands the case to the original panel of the Court to dispose of Bahlul’s remaining challenges to his conspiracy conviction.” Among other things, the petitioner had argued that Congress lacked the power to proscribe the offense under the Constitution’s “Define and Punish” clause, and that the Military Commissions Act violated equal protection principles embedded in the Fifth Amendment’s due process guarantee.  (The majority also commands that, following panel review, the case be returned to the CMCR, which will consider the effect, if any, of today’s ruling on al-Bahlul’s sentence.)

The Separate Opinions

Judge Henderson’s Concurrence

Four judges wrote separately; Judge Henderson’s came first. But for the “Government’s concession that the Ex Post Facto Clause protects Bahlul,” Judge Henderson wrote, she “would have reached a different conclusion” regarding the clause’s applicability.  Which is to say, she would have rejected al-Bahlul’s Ex Post Facto claims, whether on plain error or on de novo review.  As for plain error, Judge Henderson reiterated the obviousness required by that standard, and reasoned as follows:

Bahlul contends that his convictions are unconstitutional because the 2006 MCA, as applied to him, is an ex post facto law.  Even assuming that Bahlul is correct, the error is not plain because there is no holding by any court that an unlawful alien enemy combatant detained abroad is entitled to the protections of the Ex Post Facto Clause.

Judge Henderson would reach the same outcome under the de novo standard, too:

Even if our review were de novo, I would conclude that the Ex Post Facto Clause does not apply to aliens detained at Guantanamo. As discussed above, only one constitutional protection applies to Guantanamo even after Boumediene. 553 U.S. at 795 (“Our decision today holds only that petitioners before us are entitled to seek the writ.”); see Rasul, 563 F.3d at 529. Boumediene is the law and therefore it must be followed. But before 2008, the Constitution did not apply to aliens without property or presence in the United States. After 2008, the Suspension Clause—and only the Suspension Clause—protects only those aliens detained on the southeastern tip of an island outside the sovereign United States. We have previously said that, “[a]s a novel constitutional development, we are loath to expand Boumediene’s reach without specific guidance from the Supreme Court, particularly where expansion would carry us further into the realm of war and foreign policy.” Maqaleh v. Hagel, 738 F.3d 312, 336 n.16 (D.C. Cir. 2013). I see no reason to abandon that caution.

Judge Rogers’s Partial Concurrence in the Judgment and Dissent

Judge Rogers would have vacated al-Bahlul’s conspiracy conviction in addition to his material support and solicitation convictions. In other words, she would hand the government a total loss, and al-Bahlul a total victory, on appeal—and accordingly goes to some length in batting down the government’s main arguments.  Broadly speaking, Rogers’s opinion consists of two parts: in the first, she disputes the majority’s statutory construction; a second explains the reasons to sustain al-Bahlul’s ex post facto claim.

Judge Rogers opens with the proper interpretation of the MCA.  The statute, she wrote, limits jurisdiction to offenses “traditionally” triable by military commissions—a category which, Congress’s effort in the MCA notwithstanding, must ultimately be defined by the federal courts.

The reference in Congress’s plain and unequivocal statement of purpose to “offenses that have traditionally been triable by military commissions,” 10 U.S.C. § 950p(a) (emphasis added), clearly indicates its intent to confine military commissions to their traditional role and jurisdiction, not to overturn settled principles.

As for what counts as “traditional,” Judge Rogers first looks to Section 821—which, again, preserved commission jurisdiction over offenders and offenses who, by statute or the law of war, are properly subject to commission trials.  Because this phrase consistently has been construed by courts to mean the international law of war, Rogers writes, the question then becomes: was inchoate conspiracy an offense against international law, at the time of al-Bahlul’s actions?  The government conceded that the answer here was “no”—a concession which, Judge Rogers writes, “should end the matter,” given Congress’s goal of only codifying long-existing war crimes by means of the MCA.  She then proceeds to review the evidence in the case, and (over the course of several pages) recites the many historical precedents insisting that, generally, “law of war” means “international law of war,” and nothing else.

Given this historical background, the government has a heavy burden to show that Congress’s purpose in enacting the 2006 Act extended to inchoate conspiracy as an “offense[] that ha[s] traditionally been triable by military commissions,” 10 U.S.C. § 950p(a). The government begins by suggesting that “a systemized body of international law establishing individual criminal responsibility for specific acts during warfare” commenced with the Hague Conventions of 1899 and 1907 and “is a relatively modern innovation.” Resp’t’s Br. 28 (citing Timothy L.H. McCormack, From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime, in THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES 31, 43 (Timothy L.H. McCormack & Gerry J. Simpson eds., 1997)). It continues by citing Colonel William Winthrop, referred to by the Supreme Court as the “Blackstone of Military Law,” Hamdan, 548 U.S. at 597 (plurality op.) (quoting Reid, 354 U.S. at 19 n.38 (plurality op.)), for the proposition that prior to the adoption of these and later treaties, the “offenses in violation of the laws and usages of war [consisted of] those principally, in the experience of our wars, made the subject of charges and trial.” Resp’t’s Br. 29 (quoting William Winthrop, MILITARY LAWAND PRECEDENTS 839 (1920)

(“Winthrop PRECEDENTS”)). It also points to the reference in Hamdan to “the American common law of war,” 548 U.S. at 613. Resp’t’s Br. 32. Neither Winthrop nor Hamdan advance the government’s case for sustaining Bahlul’s conspiracy conviction.

First, in discussing the Civil War military commissions relied upon by the government, Winthrop “excludes conspiracy of any kind from his own list of offenses against the law of war.” Hamdan, 548 U.S. at 608 (plurality op.) (citing Winthrop PRECEDENTS at 839–40). Instead, Winthrop classifies the relevant Civil War conspiracy cases either as “[c]rimes and statutory offenses cognizable by State or U.S. courts, and which would properly be tried by such courts if open and acting,” or as a “combin[ation]” of such civilian crimes and “violations of the laws and usages of war cognizable by military tribunals.” Winthrop PRECEDENTS at 839 & n.5. Winthrop rejected the idea that inchoate conspiracy could be triable by law-of-war military commission, emphasizing that “the jurisdiction of the military commission should be restricted to cases of offence consisting in overt acts, i.e. in unlawful commissions or actual attempts to commit, and not in intentions merely.” Id. at 841. In other words, “‘overt acts’ constituting war crimes are the only proper subject at least of those military tribunals not convened to stand in for local courts,” Hamdan, 548 U.S. at 608 (plurality op.) (citing Winthrop PRECEDENTS at 841 & nn.22, 23). The cases cited by the government reveal that this is the manner in which the Civil War military commissions proceeded. See infra pt. I.C.1.

Second, the Supreme Court’s reference to “the American common law of war” in Hamdan, 548 U.S. at 613, is to U.S. military commission tradition and practice as an additional constraint on, not an alternative basis for, military commission jurisdiction under Section 821. The Court stated that the Uniform Code of Military Justice, which includes Section 821,“conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the [Uniform Code of Military Justice] itself, insofar as applicable, and with the ‘rules and precepts of the law of nations.’” Id. (quoting Quirin, 317 U.S. at 28). To come within the “law of war” under Section 821, an offense must constitute both a violation of the international law of war and a violation of the law of war as traditionally recognized in U.S. military commissions.

Judge Rogers goes on to explain why, international law to one side, the government has failed to substantiate its alternative argument, that conspiracy in any event violates a domestic body of law, the so-called “U.S. common law of war;” and that that much is enough to uphold the conspiracy count:

Even assuming, contrary to Supreme Court precedent, that a U.S. common law of war tradition could serve as an independent basis for sustaining convictions by law-of-war military commissions for offenses that are not recognized under the international law of war or by then-existing statute, the government fails to establish a domestic tradition to sustain Bahlul’s inchoate conspiracy conviction. It not only fails to point to evidence comparable to the abundance of evidence “both here and abroad” relied upon by the Supreme Court in Quirin, 317 U.S. at 31–35 & nn.10, 12, the government has not identified a single case where military commission jurisdiction has been sustained on the basis of a charge of inchoate conspiracy, much less a charge of conspiracy with instructions defining the limits of the government’s burden of proof that are comparable to those in Bahlul’s case.

Finally, there’s al-Bahlul’s ex post facto argument, which (in Rogers’s view) the petitioner has not waived, and which therefore should be reviewed de novo. Among other things, she notes that such review is appropriate despite waiver or forfeiture, where—as here—the court below reached and decided the allegedly forfeited issue, and military rules specifically preserve threshold challenges like al-Bahlul’s from the consequences of the contemporaneous obection rule. And, so far as concerns the federal Ex Post Facto Clause, Judge Rogers finds that provision applicable to Guantanamo, and thoroughly incompatible with the government’s analogy of military commission conspiracy to federal conspiracy:

Tellingly, when ratified and now, the Ex Post Facto Clause addresses the risk that, in response to political pressures, the legislature “may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.” Landgraf, 511 U.S. at 266; see Weaver, 450 U.S. at 29. By safeguarding the boundaries between the branches of government, the Clause promises that accusations that this country has, in Bahlul’s words, “put [our laws] on the side” and “established a new law” for our enemies, Trial Tr. 23–24, will lack merit. Yet in an odd turn of phase for addressing “one of the most basic presumptions of our law,” Johnson, 529 U.S. at 701, the government urges that the Clause “should apply flexibly” here “because of the common law nature of military proceedings” and “because Bahlul’s conduct was criminal when done,” albeit under statutes providing for prosecution in an Article III court. Resp’t’s Br. 62–63, 67. The government’s “flexible” approach to the Ex Post Facto Clause, relying on the position that Bahlul’s conduct may have been proscribed by laws other than those under which he was charged and convicted, “is a standardless exercise in crime by analogy,” Pet’r’s Reply Br. 21, that the Supreme Court has condemned, see, e.g., Papachristou v. Jacksonville, 405 U.S. 156, 168–69 (1972), and the law of war forbids[.]

Judge Brown’s Partial Concurrence in the Judgment and Partial Dissent

Like the majority, Judge Brown would affirm al-Bahlul’s conspiracy conviction, vacate his other two convictions, and remand for further proceedings regarding his sentence. But she parts company with the lead opinion in some respects. Chief among them: she would not have concluded that al-Bahlul forfeited key arguments on appeal. Consequently, Judge Brown very much would have “definitively answer[ed] the important questions raised by Bahlul’s appeal, reviewing his ex post facto arguments under a de novo standard.” But Judge Brown would have taken up fully and rejected al-Bahlul’s ex post facto, Define and Punish, and other arguments regarding conspiracy only.

Judge Brown begins with ex post facto, a legal principle that is universally recognized, but (and unfortunately for Bahlul) more about justice than procedure, in her view:

As noted above, if not for the government’s concession, I would hold that, as an alien detained outside the sovereign territory of the United States, Bahlul is not entitled to the protections otherwise afforded by the Ex Post Facto Clause. However, despite my doubts about the extraterritorial applicability of the Clause, I do not doubt that its underlying principles apply to detainees at Guantanamo. The legal principle nullum crimen sine lege, found in the common law and international law, constrains the power of the United States to prosecute wherever it may do so. But, even if there were not a long history of conspiracy charges being tried by military commission, invocation of the ex post facto principle alone could not help Bahlul or similarly situated detainees. As the International Military Tribunal convened at Nuremberg in the aftermath of World War II thoughtfully observed, “the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice.” Judgment of October 1, 1946, 1 INTERNATIONAL MILITARY TRIBUNAL, TRIAL OF THE MAJOR WAR CRIMINALS (IMT) 171, 219 (1947).

. . .

In the case of the terrorist attacks of September 11, involving the murder of thousands of civilians, the attackers knew the civilized world would condemn their actions. Bahlul was fully aware of how the world would view his complicity in a moral evil, and “so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.” See id.

Brown’s concurrence then embarks on a long excursus concerning the Define and Punish Clause, one perhaps too long for a compact summary such as this one.  But the gist is captured, more or less, by this paragraph, wherein Brown sums up her reasoning about the Clause:

In Hamdan I, the plurality seized upon the evolving nature of the international law of war to extend the protections of that law to nonconventional belligerents. But Bahlul argues this court should refuse to allow the government to leverage that evolving nature to deter those belligerents—an approach that would handcuff the United States to a one-way ratchet. Instead, we should recognize that the international law of war also adapts in a way that allows states to oppose nonconventional combatants and protect themselves from terrorists. Even more importantly, however, we must acknowledge that the development of international law is a task entrusted by the Framers to the legislative branch. The judiciary must give Congress extraordinary deference when it acts under its Define and Punish Clause powers.

Thus, and unsurprisingly, Judge Brown concludes that “[u]nder the approach to the Define and Punish Clause outlined above, which gives proper regard to the dual principles of flexibility and deference, the conspiracy charge against Bahlul should stand.”  (She makes clear that deference “does not mean there are no limits;” instead, “we are always subject to the limits which restrain any regime premised on natural law and dedicated to the protection of natural rights.”)

Finally, and unlike the majority, Judge Brown dissents

[]with regard to the court’s remand of residual issues to a panel of this court. Bahlul’s appeal has been before this court nearly three years, and the court’s decision ensures it will remain here at least another term. Bahlul’s jury trial, equal protection, and freedom of speech challenges are clearly meritless. I would deny them all because Bahlul, as an alien located outside the territorial United States, is not entitled to the protections of the constitutional provisions he invokes, and, alternatively, because his claims lack merit for the reasons stated by Judge Kavanaugh. See Kavanaugh Op. Parts III, IV, and V. []

. . .

More problematic, however, is that by reviewing Bahlul’s retroactivity arguments under the plain error standard, the court disposes of this case without providing the government clear guidance for prosecuting the remaining detainees at Guantanamo. Thus, it may be many years before the government receives a definitive answer on whether it can charge the September 11 perpetrators with conspiracy, or whether Congress has the power to make such an offense triable by military commission even prospectively. The ability to charge conspiracy is an important prosecutorial tool in the war on terror, where it can often be difficult for the government to procure evidence directly connecting leaders of militant groups with specific terror attacks.

Judge Kavanaugh’s Partial Concurrence in the Judgment and Partial Dissent

Judge Brett Kavanaugh wrote the fourth separate opinion. Over the course of 45 pages, he explains why he too would affirm the conspiracy count, vacate the two others, and remand for sentencing considerations only. But as for the rationale, Kavanaugh thinks al-Bahlul’s ex post facto claims are correct with regard to material support and solicitation, but wrong with regard to conspiracy; and that his remaining arguments (which, like Judge Brown, Kavanaugh addresses head-on) are “unavailing.”

Importantly, Kavanaugh begins his opinion by noting that today’s outcome appears to validate the outcome reached by Hamdan II—in which Kavanaugh had written the opinion for the court:

Of the seven judges on the en banc Court for this case, five judges (all but Judge Henderson and Judge Brown) agree in light of Boumediene v. Bush that the Ex Post Facto Clause applies at Guantanamo. Indeed, the Government concedes as much. Given the Government’s concession, all seven judges on the en banc Court (including Judge Henderson and Judge Brown) therefore apply the Ex Post Facto Clause to analyze the offenses that were charged against Bahlul under the Military Commissions Act of 2006. In doing so, all seven judges reach the same bottom-line result that the Court reached in Hamdan II (here, by virtue of the Ex Post Facto Clause; there, by virtue of the 2006 Act as informed by the Ex Post Facto Clause): A military commission may not try the offense of material support for terrorism for conduct that occurred before enactment of the 2006 Act. All seven judges likewise conclude that a military commission may not try the offense of solicitation for conduct that occurred before enactment of the 2006 Act. The Court is unanimous that those two offenses were not war crimes triable by military commission at the time of Bahlul’s conduct in 2001. Therefore, all seven judges agree that we must vacate Bahlul’s material support for terrorism and solicitation convictions as ex post facto violations.

On the status of conspiracy, Judge Kavanaugh’s separate opinion appears to reject the view that, so far as concerns Section 821, “law of war” means “international law only.” That analytical maneuver begins a train of reasoning that leads Kavanaugh ultimately to affirm conspiracy as a commission-triable offense, and, like the majority, to reject material support and solicitation:

Bahlul’s argument that Section 821’s “law of war” prong consists exclusively of international law offenses is inconsistent with the text and textually stated purpose of Section 821, as well as with Supreme Court precedents such as Madsen and Yamashita interpreting Section 821. Perhaps most tellingly for present purposes, Bahlul’s interpretation of Section 821 conflicts with what the Supreme Court actually did in Hamdan. Seven Justices in Hamdan analyzed the “law of war” embodied in Section 821 as the international law of war supplemented by established U.S. military commission precedents. Indeed, that is the only interpretation of Section 821 that squares with how the seven Justices analyzed the question in Hamdan.

In short, at the time of Bahlul’s conduct, Section 821 authorized military commissions to try offenses drawn from three bodies of law: federal statutes defining offenses triable by military commission, the international law of war, and historical U.S. military commission tradition and practice as preserved by Congress when it enacted Section 821 in 1916 and 1950.

With an eye on that “tradition and practice,” Kavanaugh proceeds, and eventually concludes that commission “precedents have treated conspiracy as an offense triable by military commission.”  Again echoing the majority, Judge Kavanaugh rests his conclusion “in substantial part” on the commission trial of the Lincoln assassins, along with that of the Quirin saboteurs.

Put simply, the military commission trial of the Lincoln conspirators is the highest-profile and most important U.S. military commission precedent in American history. President Andrew Johnson, after seeking the advice of the Attorney General, decided to try the Lincoln conspirators by military commission for violating the law of war rather than by criminal trial in civilian court. See Military Commissions, 11 Op. Attorney Gen. 297 (1865); see also Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868). The Lincoln conspirators were expressly charged with and convicted of conspiracy – in that case, conspiracy to violate the law of war by killing the President and Commander in Chief of the Union Army, Abraham Lincoln. Indeed, conspiracy was the only offense charged against them. After an extensive multi-week trial and vigorous argument about the facts and the commission’s jurisdiction, numerous conspirators were convicted, and several of them were sentenced to death and executed.

Congress, wrote Judge Kavanaugh, “was aware of [the] significant precedents” established by the commission conviction of the Lincoln assassins and the Nazi saboteurs; and it didn’t disown them in enacting Section 821. The other branches of government, he wrote, essentially had followed suit, something that lends historical support to al-Bahlul’s conspiracy conviction this time around. But the same cannot be said for material support and solicitation, however: “The Government’s actions between the attacks of September 11, 2001, and the enactment of the 2006 Act underscore that material support for terrorism and solicitation have not been thought to be Section 821 “law of war” offenses.”

So much for statutory matters. Kavanaugh then pivots to, and rebuffs, al-Bahlul’s “far more sweeping constitutional argument”—that Congress lacks the constitutional authority to make conspiracy, material support and solicitation war crimes triable by commission under the Define and Punish Clause.

Bahlul’s argument, in essence, is that the U.S. Constitution (as relevant here) incorporates international law and thereby interposes international law as a constitutional constraint on what crimes Congress may make triable by military commission. On its face, that is an extraordinary argument that would, as a matter of U.S. constitutional law, subordinate the U.S. Congress and the U.S. President to the dictates of the international community – a community that at any given time could be unsupportive of or even hostile to U.S. national security interests as defined by Congress and the President. And because conspiracy is not and has not been an offense under the international law of war, the argument would render the Lincoln conspirators and Nazi saboteur convictions for conspiracy illegitimate and unconstitutional. I would reject the argument.

The premise, Judge Kavanaugh reasons, is “incorrect,” given that Congress’s powers here stem not merely from the Define and Punish Clause, but also from war powers conferred by the Declare War and Necessary and Proper Clauses.  That view, he writes, follows not merely from the constitutional text, but also from “historical practice”—including the prosecution of the Quirin saboteurs for spying, an offense concededly not an offense against the international laws of war, but, instead, a statutory offense codified by Congress.

Kavanaugh next swiftly dispatches al-Bahlul’s remaining arguments, regarding Article III, and the jury provisions of the Fifth and Sixth Amendments, the Fifth Amendment’s equal protection principle, and the First Amendment.

Kavanaugh casts the first as a mere re-hash of al-Bahlul’s unfounded claim that commissions may try only international law of war offenses, and in any event finds it to be contrary to Supreme Court precedent. There’s tension here, for al-Bahlul: he “begins with the premise” that all crimes must, under the Constitution, by tried by a jury; but he still recognizes that the Lincoln assassins and Nazi spies were tried by a military commission.  To Kavanaugh, all this reflects a larger principle.  “The United States,” he writes, “may be a leader in the international community, not just a follower, when Congress authorizes war against a terrorist organization or makes crimes such as conspiracy war crimes triable by military commission.”

Regarding equal protection, Kavanaugh acknowledges the alienage distinction drawn by the MCA’s jurisdictional provisions, but nevertheless upholds it as founded upon Congress’s vital national security interests.  Third is the First Amendment claim, which Kavanaugh knocks down essentially because the case involves conduct, not speech; and because foreign nationals like al-Bahlul “have no First Amendment rights abroad in foreign countries.”

Finally, Judge Kavanaugh makes some concluding remarks.  In particular, he expresses surprise at the majority’s overruling of Hamdan II’s “statement that the 2006 Act itself incorporates ex post facto principles,” as well as several other features of the lead opinion:

On [the question of the restraints imposed by the Ex Post Facto Clause], my view is that the Ex Post Facto Clause bars prosecution at Guantanamo of new offenses that were not previously triable by military commission.  But the majority opinion suggests (although it does not definitively conclude) that the Ex Post Facto Clause is less of a constraint on the Government and may allow military commissions at Guantanamo to retroactively prosecute offenses that were previously triable as federal crimes in Article III federal courts, even if those offenses were not previously triable by military commission.

I am surprised by this rather aggressive suggestion about the meaning of the Ex Post Facto Clause. After all, that position was not forcefully advocated by the Government in its submission to the en banc Court, as the argument appeared only in a short discussion late in its brief. In the hour-long oral argument, moreover, the Government did not advance that argument, and no Judge asked any question along those lines or suggested this as a possible approach. Moreover, like Judge Brown (as well as Judge Rogers), I too respectfully have serious doubts about the majority opinion’s suggestion that the Ex Post Facto Clause may allow military commissions to retroactively prosecute crimes that were previously triable as federal crimes in federal court even when they were not previously triable by military commission.

It is especially surprising for the majority opinion to take its doubly aggressive approach – overruling one aspect of a precedent of this Court and advancing a heretofore unheard-of view of the Ex Post Facto Clause’s application to military commissions – when it is unnecessary to do so here. After all, in what it terms an “independent and alternative” holding, the majority opinion says that plain error review applies and concludes that the conspiracy conviction was not plain error because conspiracy at least arguably was triable by military commission under Section 821 at the time of Bahlul’s conduct. The majority opinion notes, correctly, that it is impossible to describe the Government’s position on conspiracy and Section 821 as plain error when the issue remains open in the Supreme Court and three Justices in Hamdan agreed with the Government’s position. The majority opinion could have said no more than what it says about Section 821 to resolve the conspiracy ex post facto issue for purposes of Bahlul’s appeal

. . .

I am also surprised by what the majority opinion does not decide. We took this case en banc specifically to decide whether, consistent with the Ex Post Facto Clause, a military commission could try conspiracy for conduct that occurred before the 2006 Act. Yet the majority opinion does not actually decide that question. That is because the majority opinion applies the plain error standard of review. The majority opinion thus does not decide whether there was error in the conspiracy conviction; instead, it decides only whether any alleged error was plain. Like Judge Brown (as well as Judge Rogers), I too disagree with the majority opinion’s use of a plain error standard of review.

. . .

On top of not deciding how the ex post facto principle applies to conspiracy trials before military commissions, the majority opinion also does not decide Bahlul’s Article I, jury trial, equal protection, or First Amendment challenges, but rather sends those four issues back to a three-judge panel for resolution. I also respectfully disagree with that approach.  The remaining issues are not that complicated; we have the requisite briefing; and we could request supplemental briefing if need be.  Moreover, those issues are especially easy to decide on plain error review, which after all is the standard of review that the majority opinion indicates must be applied to these issues. Sending the case back to a three-judge panel will delay final resolution of this case, likely until some point in 2015, given the time it will take for a decision by the three-judge panel and then resolution of any future petitions for panel rehearing or rehearing en banc.  Like Judge Brown, I believe that we should resolve the case now, not send it back to the three-judge panel.

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