Wells already flagged yesterday's news re: General Martins' apparent skepticism about the availability of conspiracy and military commission charges in future military commission cases (at least those brought against the current Guantánamo detainees, all of whom could raise the same ex post facto argument as the one at the heart of Hamdan II). As Wells rightly suggests, it certainly seems as if the Chief Prosecutor is not optimistic that the en banc D.C. Circuit will come out the other way in Al-Bahlul (and as we've suggested before, it's hard to disagree given the current composition of the court). Even with the addition of Judge Srinavasan (who may well recuse based upon his recent stint in the SG's Office), the government would still need to sway two Democratic appointees given that Judge Kavanaugh wrote for the majority--and was not materially constrained by prior circuit precedent--in Hamdan II.
With that in mind, I thought I'd flag an amicus brief filed on Monday that I co-authored on behalf of the National Institute of Military Justice (NIMJ) in support of Al-Bahlul before the en banc D.C. Circuit, which may help to reinforce General Martins' skepticism. (Details below the fold...)
To a large extent, the brief merely reiterates the points we made in a similar amicus brief filed before the original three-judge panel, i.e., that even if Congress has the power under Article I to define conspiracy and/or MST as war crimes, an entirely separate--but equally substantial--constitutional question arises as to why Article III allows such offenses to be tried in a military commission. Although Ex parte Quirin recognized an exception to Article III for "offenses committed by enemy belligerents against the law of war," that exception was necessarily limited to offenses against the international laws of war. Thus, even if Congress may rely upon the "domestic common law of war" to codify offenses such as conspiracy and MST, such offenses can only be tried in a non-Article III military tribunal if some other exception to Article III (and the jury-trial protections of the Fifth and Sixth Amendments) apply. So long as the government's theory had been that these offenses were international war crimes, Quirin otherwise explained why Article III and the jury clauses wouldn't bar a military commission, as opposed to civilian, trial--at least for those defendants properly deemed to be enemy belligerents. Thus, as I suggested when the government first relied upon the "domestic common law of war" argument, the shift in theory only traded one constitutional problem (whether Congress can decide for itself under Article I what international law prohibits) for another (whether it can subject such offenses to trial by military commission).
None of the above is new. The principal addition to the en banc brief as compared to the panel brief is a new discussion in response to footnote 6 of Judge Kavanaugh's opinion in Hamdan II. Given the ground on which it was decided, Hamdan II did not need to address the Article III issue at all... Nevertheless, writing only for himself in footnote 6, Judge Kavanaugh suggested that Congress does have the power, prospectively, to codify offenses against the "domestic common law of war." In his words, "Although material support for terrorism is not yet an international-law war crime, Congress's war powers under Article I are not defined or constrained by international law. The Declare War Clause and the other Article I war powers clauses do not refer to international law, unlike the Define and Punish Clause." Thus, in Judge Kavanaugh's view, nothing would stop military commissions from trying conspiracy and/or MST so long as the charge is based on conduct that post-dates the MCA (as I elaborated upon in point 2 of this post).
As we explain in our brief, whether or not Judge Kavanaugh is correct in his analysis of Article I (a question on which we take no position), that's only half the matter, for the question remains whether Congress may subject such offenses to trial by military, rather than civilian, court. And under the Supreme Court's settled jurisprudence, that is an Article III/jury-trial clauses question, not an Article I question.
Put another way, whether or not Congress may use other enumerated powers to define offenses against the U.S. common law of war, one must still explain why Article III and the jury-trial clauses of the Fifth and Sixth Amendments don't require such offenses to be tried in a civilian court. To uphold even prospective trials of conspiracy and MST before military commissions, then, courts would not just have to identify Congress's power to codify these offenses; they would also have to identify a new and heretofore unrecognized exception to Article III and the jury clauses for offenses against the "domestic common law of war."
To be sure, the same Article III concerns arise a fortiori if one seeks to apply these offenses retroactively. Thus, if the en banc D.C. Circuit were to reach a different conclusion from Hamdan II, this issue could still directly arise in Al-Bahlul. More fundamentally, though, these concerns suggest one more reason why General Martins' skepticism is well-conceived, even for cases (unlike Hamdan II and al-Bahlul) based upon post-2006 conduct...