As Wells noted on Tuesday, the D.C. Circuit granted the government's petition for rehearing en banc in Al-Bahlul v. United States. This is a very important development, as the full appeals court will now determine whether military commissions may try defendants for pre-2006 instances of "standalone" conspiracy and providing material support for terrorism.
Al-Bahlul has its roots in Hamdan v. United States (Hamdan II), in which a military commission found the defendant guilty of providing material support for terrorism. But a D.C. Circuit panel reversed the Hamdan II conviction, and the reasoning behind the panel's decision led the D.C. Circuit likewise to reverse the conviction for conspiracy in Al-Bahlul. The government has asked, and the court has agreed, for the full D.C. Circuit to review its holding in Al-Bahlul, as well as its earlier opinion in Hamdan II. The result stands to affect much more than just the verdict in Al-Bahlul --- it could have far-reaching effects on the ongoing military commissions in Guantánamo Bay, including the trials of Khalid Sheikh Mohammed and the other 9/11 defendants.
Below, you'll find a broad overview of the cases, an explanation of the complex legal issues at play, and a basic chronology of how we got here.
Military Commissions and Hamdan II
In 2006, the Supreme Court in Hamdan v. Rumsfeld invalidated the military commissions set up by the Bush administration to try members of al Qaeda and the Taliban as unlawful enemy combatants for war crimes. The Court held that that commissions lacked necessary congressional authorization and violated international law. In response, Congress passed the Military Commissions Act of 2006 (MCA), which, in addition to setting out new procedures for the military commissions at Guantánamo Bay, specifically identified 28 different crimes that the military commissions had the authority to try. The list included providing material support for terrorism, and conspiracy to commit the other offenses listed in the MCA.
Salim Hamdan, a Yemeni national picked up in Afghanistan in 2001 and held at Guantánamo Bay (and whose military-commission charge was at issue in the Supreme Court's decision in Hamdan), was the first person to be tried in the new, post-MCA military commissions. He was acquitted of conspiracy but found guilty of providing material support for terrorism for actions taken between 1996 to 2001. Hamdan served out his term and, in 2008, was sent back to Yemen. He continued to appeal his conviction, however, and, in 2012, in Hamdan II, a three-judge panel of the D.C. Circuit reversed Hamdan's conviction as unauthorized under the MCA.
The D.C. Circuit held that the MCA did not mean to criminalize pre-2006 conduct that was not at the time considered a violation of the international laws of war. The court's reasoning was complex and involved several steps. The court first interpreted the MCA as not intending to criminalize any conduct before its enactment in 2006. The court interpreted the MCA this way because otherwise the MCA might have violated the the Ex Post Facto Clause of the Constitution. This provision, roughly speaking, forbids Congress from passing any law that criminalizes conduct that occurred before the law was passed. In order to avoid this potential constitutional violation, the court read the MCA as not applying retroactively --- i.e., not seeking to criminalize conduct that occurred before its enactment.
The court then argued that the MCA could still apply to Hamdan's criminal conduct, but only if some other law at the time gave military commissions the power to try that conduct. The relevant law in force at the time, 10 U.S.C. § 821, gave military commissions the power to try violations of the "law of war." Thus, if providing material support for terrorism was a violation of the law of war at the time Hamdan committed the crime, the MCA would still apply. But before the court could decide that question, it first had to figure out what "law of war" referred to --- specifically, whether it meant the domestic law of war or the international law of war.
The court held that the "law of war" in § 821 referred to the international law of war --- i.e., the rules that govern war as generally understood and interpreted by nations. Thus, even if a particular crime had been historically tried by military commissions --- and thus was part of what the government called the "U.S. common law of war" --- it was not covered by § 821 if it wasn't at the time considered a crime under the international law of war. The court then concluded (and the government itself conceded) that material support was not a violation of the international law of war. Material support was prohibited neither by treaty nor international custom.
Thus, because providing material support for terrorism was not a violation of the international law of war, it didn't fall under § 821. This, plus the fact that Hamdan's conduct took place before 2006, meant that the MCA did not authorize Hamdan's conviction by military commission of material support.
Hamdan II's Legal Implications: Al-Bahlul
Hamdan II only directly addressed whether pre-2006 material support was triable before a military commission. Although Hamdan was charged with both material support and conspiracy, he was acquitted of the latter charge. Thus, when the Hamdan II court considered his conviction, it only had an opportunity to rule on the material-support issue. But the logic of Hamdan II applied to any pre-2006 conduct that was not at the time recognized as a violation of the international law of war. Conspiracy fell into that category.
One of the Guantánamo detainees convicted of conspiracy by the military commissions was Ali Hamza Ahmad Suliman al-Bahlul. Al-Bahlul appeal to the D.C. Circuit, arguing that Hamdan II required that his conviction be reversed. In its response, the government agreed that conspiracy was not considered a violation of the international law of war pre-2006, and thus Hamdan II required that Bahlul's conviction be reversed. But the government argued that Hamdan II was itself wrongly decided, because § 821's "law of war" should be interpreted as including not just the international law of war, but also the U.S. common law of war. Agreeing with both sides that Hamdan II required reversing Bahlul's conspiracy conviction, the D.C. Circuit did so in late January. The government then petitioned the court to rehear the case en banc --- to have all seven active judges review the three-judge panel's decision.
(You might be wondering why the government agreed that Hamdan II required reversing Bahlul's conviction, if it simultaneously argued that Hamdan II had been wrongly decided. The reason is that, generally, one three-judge panel of an appellate court cannot reverse the decision of another three-judge panel. And here, the three-judge panel decision in Hamdan II also undermined the government's case in Al-Bahlul. Thus, the government had two options to change the outcome of both cases: it could ask the entire D.C. Circuit to review the cases or petition the Supreme Court to. It chose the first option.)
The D.C. Circuit's order granting the government's petition asked the parties to address, in addition to the issues brought up in the first Al-Bahlul decision, the following questions: (1) whether Hamdan II's core holding about the retroactive application of the MCA to pre-2006 conduct was correct; and (2) if so, whether stand-alone conspiracy --- the crime the military commissions convicted al-Bahlul of --- was at the time considered a violation of the international law of war, and thus triable by military commission under § 821. On the second point, a four-Justice plurality in Hamdan, led by Justice Stevens, argued that military commissions could not try charges of conspiracy because conspiracy was neither a violation of the international laws of war nor traditionally prosecuted by U.S. military commissions. However, because only a plurality of the Justices signed on to this part of the opinion, it was not part of the Supreme Court's holding and thus not binding on the D.C. Circuit. (For a fascinating, primary-source argument that conspiracy has, in fact, been historically tried by U.S. military commissions, see this guest post by independent scholar Haridimos Thravalos and the law-review article that grew out of it.)
Why This Is Important
Decisions like Hamdan II and Al-Bahlul aren't just of legal interest. They have concrete effects on other cases --- some pending and others still hypothetical.
Prosecution Strategy in the 9/11 Case
In particular, Hamdan II provoked sharp disagreement within the government about how the military-commissions trial of the 9/11 defendants should proceed.
First, some background on how the military commissions are structured. The prosecutorial function is split between two institutions: the Convening Authority (CA) and the Office of the Chief Prosecutor (OCP). The CA functions something like the civilian grand jury, but with more power: it convenes the military commissions and, very importantly, decides, based on the OCP's initial recommendation, which charges to "refer for trial" --- in other words, what to indict the defendants with. The OCP's job is to prosecute the charges before the military commissions. By law, the CA and OCP are independent. The OCP does not report to the CA and the CA does not have to accept the OCP's recommendations. This can lead to disputes between the CA and OCP on which charges out to go forward and which ought not to.
This is exactly what happened in the wake of Hamdan II. In January, shortly before Al-Bahlul came down (but after it became clear what the result was going to be), Brig. Gen. Mark Martins, OCP's head, recommended to the CA that the stand-alone conspiracy charges against the 9/11 defendants be dropped. By standalone, Martins meant the charges that treated conspiracy as a crime in and of itself. Martins still intended to use evidence of a conspiracy among the defendants to establish each one's liability for the criminal acts --- murder, hijacking, etc. --- of the others. (See my previous post on this issue for more detail.) Martins had two reasons for recommending dropping the stand-alone conspiracy charge: (1) it would avoid the uncertainty and delay of having to defend, after the military-commissions trial ended, a stand-alone conspiracy conviction against cases like Hamdan II and the soon-to-be decided Al-Bahlul; and (2) the other charges against the 9/11 defendants provided plenty of opportunity to convict them.
One might have thought that the CA would have agreed with the prosecutor's recommendation. But the CA declined to do so, stating that "dismissal at this time would be premature, as the viability of conspiracy as a chargeable offense in trials by military commission is still pending appellate review." And indeed, in March the government petitioned the D.C. Circuit to rehear Al-Bahlul en banc, with a potential further appeal to the Supreme Court. In the meantime, Martins joined the 9/11 defendants' defense counsel in asking the military commissions judge (who is himself independent of both the CA and OCP) to dismiss the stand-alone conspiracy charge. We're still waiting for oral argument and the judge's decision on the motion to dismiss the stand-alone conspiracy charge.
Future Commissions Prosecutions
A decision reaffirming Hamdan II and keeping conspiracy and material support unavailable to the military commissions will dramatically change their scope. As Ben noted soon after Hamdan II came down, the commissions would no longer be a viable option for the (at least pre-2006) conduct of low- or even mid-level terrorism suspects:
If you deprive a specialized post-9/11 tribunal of material support and conspiracy as charges, you make it far more specialized. In truth, you probably limit it to very senior Al Qaeda figures. Conspiracy and material support are, after all, the bread and butter charges with which prosecutors would go after smaller fish --- at least, those smaller fish who had not individually participated in a killings or bombings. I don’t know how much their removal from the military commission prosecutors’ toolbox would shrink the already-pretty-small cadre of Guantanamo detainees who could face charges in commission. But I am certain it would have a non-trivial impact on the caseload. It might, in fact, turn a post-9/11 tribunal into something closer to a tribunal focused almost entirely on trying crimes related to the 9/11 and Cole attacks --- that is, unless someone were to revisit the prospective use of military commissions for future captures. If one went that route, the broader array of charges would suddenly become available again.
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Quite apart from the possibility of simply upholding Hamdan II, the government is taking a gamble in asking the D.C. Circuit to reconsider that decision. The three judges who authored Hamdan II --- David Sentelle, Brett Kavanaugh, and Douglas Ginsburg --- are generally considered three of the more conservative members of the D.C. Circuit. A decision by the entire D.C. Circuit might end up in a ruling that's even worse for the government than Hamdan II. Of course, an en banc Al-Bahlul that goes even farther than Hamdan II might convince the Supreme Court to hear the case, but there again that could result in a defeat for the government. Given how unexpected the D.C. Circuit's grant in Al-Bahlul was, however, how this ends up is anybody's guess. Stay tuned.