In a sense, today’s lengthy en banc D.C. Circuit argument in Al-Bahlul was unsurprising (audio downloadable here) in that it did not disturb what has by now become (we gather) a widely-shared view: the question probably isn’t whether the government is going to lose its appeal to the full circuit court. The question is, instead, how it will lose.
On the latter point---and again, unsurprisingly---the seven-member court didn’t show its cards. Some judges asked about the retroactive application of the Military Commissions Act of 2006, to conduct that (like Al-Bahlul’s) predated the statute’s enactment; others were interested in the relevance of some dusty American precedents, in which defendants were tried, as Al-Bahlul was, in a military commission, and for conspiracy. Still others asked about the standard by which the court should evaluate ex post facto issues, and the government’s decision to proceed against Al-Bahlul on legally vulnerable conspiracy and other charges---when seemingly less debatable charges were available.
Still, there didn’t seem to be a single bloc skewing towards a clear rationale, though some exchanges about the standard of review and the federal ex post facto clause hinted at a departure from the Hamdan II panel’s retroactivity analysis. And thus we find ourselves in much the same place where we began: with strong doubts about the government’s chances, and with vastly greater confidence in Al-Bahlul’s---but without a clear signal of the reasoning that will lead the court, we suspect, to reinstate the vacatur of Al-Bahlul’s conviction.
Such was our impression of a quite skeptical, forty-five minute back-and-forth between the appeals court’s active members and the government’s attorney, Ian Gershengorn; and of a much gentler, shorter dialogue between the judges and the defendant’s lawyer, Michel Paradis. The contrast was evident throughout the morning, and in four particular exchanges---which we highlight below.
The Law of War
Take, for example, an issue at the “heart” of the case, according to Gershengorn: whether conspiracy can be tried in a military commission convened under the MCA. The question is central to the case, for the United States agrees with Al-Bahlul that, at the time of his alleged conduct, the international law of war did not make conspiracy, standing alone, a war crime. Gershengorn nevertheless argued that conspiracy is a lawful, commission-triable offense---among other things, because of the MCA’s plain text, and because of longstanding U.S. domestic practices. The category of commission offenses, in other words, is broader than international law. Here, the judges pushed more on Gershengorn, and less on Paradis.
The latter urged the en banc court to reach the same conclusion as the three-judge panel in Hamdan II: “law of war” in Article 21 means international law, period; and international law rejects freestanding conspiracy as an offense, period. When asked about this, Paradis answered as expected: in enacting the MCA, Congress explicitly referenced its powers under the Constitution’s Offenses Clause---which authorizes it to define and punish offenses against the “law of nations,” meaning international law. The lawyer added with a lengthy recitation of international law precedents, all of which reject standalone conspiracy as an international war crime.
It was somewhat tougher sledding for the United States’s lawyer, who accepted that the law of war is generally international in nature, but again relied upon the longstanding U.S. practice (in the Civil War era, and after World War II) of prosecuting standalone conspiracy in military commissions, as a basis for likewise prosecuting Al-Bahlul under the MCA. That history, incidentally, won approval of eight justices in the Supreme Court’s Hamdan I decision, in Gershengorn’s view; a vote for his practice-based theory is a vote to sustain the High Court’s precedents, not to deviate from them. He seemed to contrast that move with the panel’s decision in Hamdan II---which deviated from Hamdan I’s historical discussion, according to Gershengorn.
The judges took turns testing this theory, Judge Kavanaugh by noting the Supreme Court’s seeming equation, in Justice Kennedy’s Hamdan I concurrence and other places, of the law of war with international law; Judge Janice Rogers Brown, by asking whether the government meant to rest on a purely “domestic common law of war” theory, or the theory that U.S. practice serves to delimit inexact boundaries in international law; and Judge David Tatel, by wondering what would happen if the historical precedents didn’t suggest conspiracy as an offense triable by military commission. When Tatel pressed further, Gershengorn seemed to agree that this would doom the United States’s position.
In rebuttal, Al-Bahlul’s lawyer reiterated his legal position, but also took issue with the government’s historical account. Sure, Paradis said, prosecutors in post-World War II military commissions sought to bring conspiracy charges, but military judges uniformly rejected those efforts and instead required the government to proceed on theories permissible under---wait for it---international law. And of course, Paradis argued: the government could have charged Al-Bahlul with a substantive crime and then proven guilt in this fashion. But it didn’t.
Waiver and the Standard of Review
The en banc court also pressed Gershengorn hard about his side’s claim that Al-Bahlul had failed to raise issues under the federal ex post facto clause, and therefore forfeited them on appeal. This, the United States had said in its briefs, significantly narrowed the appeals court’s review, to one for so-called “plain error” only. When asked about the topic by Judge Thomas Griffith, Paradis disputed the alleged waiver, and in two respects. First, he said, Al-Bahlul had preserved his ex post facto and other claims, by telling his military commission’s Presiding Officer that the charges against him “[were] not crimes.” Secondly, and in any case, ex post facto issues are structural in nature, and therefore cannot be waived. The exchange was quick, and seemingly uneventful.
Not so for the United States---which fielded especially skeptical waiver questions from two judges on the panel. The Chief Judge, Merrick Garland, asked why Gershengorn had limited its waiver claims to Al-Bahlul’s ex post facto argument---that is, why it had not claimed that Al-Bahlul also had failed to raise, and thus waived, other, non-ex-post-facto claims on appeal. (He had in mind Rule 52 of the Federal Rules of Civil Procedure, which doesn’t strictly apply to this MCA case; Gershengorn protested that waiver and forfeiture rules still come into play.) Garland went on to doubt the fairness of letting the government pick and choose among waived claims. And he suggested that military courts---like the Court of Military Commission Review. which heard the case below---can “waive the waiver,” so to speak. Finally, he added, courts have engaged in plenary review of supposedly waived claims, when lower courts earlier reached and resolved those very claims---as the CMCR did with Al-Bahlul’s contentions regarding the ex post facto clause. Gershengorn conceded a lack of familiarity with cases Garland cited here, though he insisted that the CMCR’s assessment of the ex post facto issue would not, in fact, affect the application of traditional waiver principles, and a plain error standard.
“Uncertainty” After Hamdan II, and the Consequences of Overturning Al-Bahlul’s Conviction
Another noteworthy, and probably-not-helpful-to-the-United-States feature of today’s session: three different judges batted down Gershengorn’s invocation of the case’s stakes.
Judge Brett Kavanaugh inquired about the United States’s reasons for seeking en banc review initially---a natural enough inquiry, given his authorship of the Hamdan II opinion now under review, along with Al-Bahlul’s conviction. In his answer, Gershengorn cited the prevalence of conspiracy charges, and alluded to the consequences of a ruling against the government: a number of commission defendants already have pleaded guilty to standalone conspiracy counts, and to material support. Moreover, he added, in the 9/11 case, the defendants there already have filed a motion, in light of the panel’s ruling in Hamdan II, asking for all charges to be dismissed---not just conspiracy charges, but all of them. The panel’s decision, Gershengorn summed up, has made for uncertainty, and brought on the United States’s petition for review by the full appeals court.
Chief Judge Garland, immediately seized on this last part: wasn’t uncertainty a consequence of the prosecution’s decision to stick Al-Bahlul with legally doubtful conspiracy charges in the first place? The government could have charged him with aiding and abetting, for example---and theoretically avoided the litigation risk associated with conspiracy. The government’s lawyer had little room to maneuver, and only observed that Congress had deemed conspiracy to be a “triable” offense. The finding still wasn’t enough for Chief Judge Garland, who once more attributed the uncertain legal environment to the United States’s charging decision, and not to Hamdan II. And Garland finally added: if uncertainty is the problem, why has the government insisted that Al-Bahlul’s claims under the ex post facto clause be reviewed for plain error only? Jettisoning such a position, and acceptance of plenary review, might permit the court to more definitively resolve a central issue in the case.
Two other judges wondered aloud about the case’s practical significance for the government, and how much that ought to matter in deciding the case. For his part, Judge Kavanaugh didn’t see a high-stakes dispute, so far as concerned the accused. Whatever the en banc court might decide, he said, the United States still may elect to detain Al-Bahlul under the laws of war for the duration of the conflict, or to charge him under any lawful theory as to his conduct pre-2006 or after. Thus vacating Al-Bahlul’s conviction, Kavanaugh quipped, “isn’t a release order.” Even that prospect didn’t seem to matter too much to Judge Thomas Griffith, who noted similar, earlier reference by Gershengorn, to the case’s “impact.” Griffith asked: what role does the potential impact of our ruling have on this case? And when Gershengorn didn’t answer directly, Judge Griffith did so, for him. Impact doesn’t matter, the judge intoned.
Al-Bahlul’s Current Desire to Press on with the Appeal
Remember this issue? If it is of surpassing importance to one or more of the seven judges, then you certainly wouldn’t know it from today’s argument. We heard not a peep from the bench or the attorneys about the D.C. Circuit’s recent inquiry into whether, in fact, the accused desired Paradis to push forward with the appeal. (The court would do well to let the matter pass, in our view---given representations to date from defense counsel, and the genuine oddity of an appellate court insinuating itself into the attorney-client relationship under these circumstances. But that’s another story.)