Whether or not you agree with the result of today’s decision, the D.C. Circuit has done no one any favors–not the government, which will still be terribly uncertain as to which cases it can and can’t bring; not the defendants, for obvious reasons; not the public; and, most importantly, not the commissions–the fragility of which is only exacerbated by today’s decision, which unanimously throws out material support and solicitation, and creates a huge headache with respect to conspiracy. In other words, for commissions the legal legitimacy of which was already in limbo, today’s decision only makes it worse insofar as it opens the door to additional years’ worth of litigation over the basic question of which offenses the commissions can try.
This strikes me as an unduly pessimistic account. There was always going to be uncertainty and litigation after this ruling, as well as the possibility of Supreme Court review. But far from exacerbating the fragility of commissions and weakening their legitimacy, this decision can be seen to accomplish the opposite. The en banc Bahlul ruling is, I think, the first appellate court decision to uphold a military commission conviction on direct appeal. The plain error analysis in the decision does leave open many questions about the availability of conspiracy charges pre-2006, but it does not appear to call into question the commissions’ recent narrowed emphasis on completed versus inchoate conspiracy charges. More broadly, in contrast to the Supreme Court’s decision in Hamdan, which some read to signal that military commissions could not survive in the modern era, the D.C. Circuit is not here questioning the basic legitimacy of commissions, but rather is assuming their legitimacy (in fact and in tone) and is working out the invariably messy details of their proper scope. We understandably focus on commissions as they apply to the 9/11 conspirators, and on current skirmishes about retroactivity. But the jurisdiction of commissions as set forth in the Military Commissions Act extends far beyond the 9/11 conspirators. If one takes Congress’s longer view that commissions are a narrow but important tool for the very long war against still-expanding terrorist threats – a tool that over time can complement other law enforcement and military tools without the burden of either retroactivity concerns or problematic interrogations – then Bahlul appears to be a step in the direction of judicial acceptance of the basic legitimacy of commissions. Of course, only time, and the many intervening imponderables that time brings, will tell.