For the two people still following the exchange between me and Peter Margulies over the bottom-side briefing in the al Bahlul D.C. Circuit military commission appeal, I wanted to offer a very quick (and hopefully final) word in response to Peter's surreply from this afternoon, in an effort to crystallize the true points of departure between us--and how they should cash out before the three-judge panel on remand from the en banc court. Unfortunately, I think Peter's latest post has only confused what was increasingly becoming clear.
To make a long story short, Peter wants readers to believe that the real fight between us is over how much deference Congress should receive when it proscribes conduct pursuant to its Article I power to "define and punish . . . Offences against the Law of Nations." Thus, in Peter's view, non-Article III military commissions should be allowed to try the offense of conspiracy (the remaining charge in al Bahlul's case) because Congress could reasonably conclude that conspiracy is such an offense, and, under the rational basis test, that's all that the Constitution requires. Once again, Peter is missing--or at least misunderstanding--my argument. The real fight between us has nothing to do with Congress's Article I power--on which, as this 2010 article of mine should prove, we largely agree. Rather, our dispute is over the circumstances in which Congress can use that Article I power to subject such offenses to trial by a military, rather than civilian court--a subject on which the Supreme Court has never suggested Congress is entitled to deference of any kind (let alone rational basis review); quite to the contrary! The key to understanding Peter's argument--and the argument advanced by the government in the brief that precipitated this whole exchange--is to understand the two interrelated elements of the basic claim: (1) That the Supreme Court in Ex parte Quirin gave its imprimatur to the constitutional power of military commissions to try the offense of spying qua sabotage; and (2) that, because spying qua sabotage is not an international war crime, the Court thereby necessarily held that non-Article III military commissions may constitutionally try at least some "domestic" offenses, even when the civilian courts are available. And the key to understanding my position--and that advanced by the petitioner in his top-side brief and the National Institute of Military Justice in its amicus brief--is that while the first conclusion is certainly correct, it simply does not compel the second conclusion, entirely because Quirin (erroneously) understood spying qua sabotage to be an international war crime. In other words, although Quirin did bless military trials of spying, it did so based upon the mistaken (and deeply controversial) view that such an offense was just like any other war crime--and not because military commissions may try domestic offenses, too. Thus, the government and Peter (and Judge Kavanaugh, in his en banc concurrence) wrongly read into Quirin a holding about domestic offenses that just isn't there. Just so that there can be no doubt, let me reiterate the punchline: Quirin doesn't preclude the theory of Article III advanced by Judge Kavanaugh and the government and supported by Peter--i.e., that military commissions may try enemy belligerents for offenses against domestic law if they have a sufficient nexus to an armed conflict. But Quirin doesn't support it either, for the theory simply was not at issue there. Instead, whether non-Article III military commissions may try enemy belligerents for domestic offenses when the civilian courts are open is a constitutional question of first impression for the D.C. Circuit, and one that, contra Peter, raises fundamentally different issues than the Ex Post Facto Clause claim sidestepped by the en banc D.C. Circuit back in July. It should by now be clear how both Peter and I would answer the Article III question; my goal in these posts has simply been to explain, as clearly as possible, (1) why it must be answered on a clean slate; and (2) why it's therefore so surprising to me that, rather than defending the commission's jurisdiction as a matter of first impression, the government has rested its defense entirely on the easily debunked assertion that the jurisdictional issue was settled by Quirin.