Your Lawfare day is winding down at long last. You’ve just savored a scholarly exchange on the D.C. Circuit’s fidelity to Boumediene. The table is cleared, and you've just settled into your comfy, oversized armchair. It's time for a desertif. And what better way to top things off, than with a quick update in United States v. Al-Nashiri?
Take yourself back to April’s motions hearing before Judge Pohl at Guantanamo. Five motions from the session were resolved in May, and of these, three completed security review a week or so back. In separate opinions, Judge Pohl rejected three threshold challenges by the defense – first and second, that the Constitution’s federal ex post facto clause bars the conspiracy and terrorism charges against Al-Nashiri, respectively; and third, that the Military Commissions Act of 2009 is an unconstitutional Bill of Attainder. The opinions span two pages apiece, their brevity surely having to do with Judge Pohl’s application of superseding authority. In each, the court holds that the Court of Military Commission Review (“CMCR”), in Hamdan and al-Bahlul, specifically addressed and foreclosed the arguments raised by Al-Nashiri’s three motions. Nothing to see here, really. Higher authority already explicitly said “no,” so the commission also must say “no” to the accused’s ex post facto and Bill of Attainder claims.
Note that there are two other, related motions, which also have been decided but not yet released. According to the docket, Judge Pohl also has ruled on the defense’s motions to dismiss for lack of jurisdiction over the charges of conspiracy and terrorism. Given that the ex post facto claims didn’t go anywhere, odds are that the jurisdictional claims won’t, either, though we'll know soon enough. On this point it will be interesting to see how the still-unreleased conspiracy motion approaches Al-Bahlul, in which the government also had charged the accused with conspiracy. The issue matters not merely for Al-Nashiri’s case, but also for that of the 9/11 of defendants – each of whom, like Al-Nashiri, face conspiracy charges. (Recall, too, that at arraignment in the 9/11 case, defense counsel openly doubted whether Pohl would be willing to consider, with an open mind, arguments in the 9/11 case that he had already heard and rejected in Al-Nashiri’s.)
In Al-Bahlul, the government pushed a view that it has since backed away from - that conspiracy is an offense against the law of war that Congress could codify by means of its authority to “define and punish . . . offences against the law of nations.” But in Al-Nashiri, and in ongoing appeals before the D.C. Circuit in Hamdan and Al-Bahlul, the government has trotted out a new strategy. Now its primary argument is that the disputed charges are longstanding parts of a “U.S. common law of war,” and thus can be subjected to commission jurisdiction by dint of the legislature’s war powers. Alternatively, the government says that terrorism generally has been prohibited by international law, including treaties binding on the United States, and that the Define and Punish Clause permits Congress to implement its international obligations by criminalizing things like material support and conspiracy. But gone is the law of war talk that the government emphasized in Al-Bahlul – and that now confronts Pohl as binding authority, pending action by the D.C. Circuit.
So you’re Judge Pohl. An intermediate court has decided two cases binding upon you, but the analysis in those cases is under review by a higher court. And in the meantime, prosecutors have jettisoned the theory that lead the intermediate court to adopt that analysis in the first place, and didn’t exactly defend it during recent appellate arguments, either. What’s your move in Al-Nashiri, where the government argues both that the intermediate ruling’s analysis remains binding upon you, but that, even if it isn't, an new and improved “U.S. common law of war” theory nevertheless applies, so as to defeat Al-Nashiri’s jurisdictional challenge?
Addressing the latter head-on would mean getting out in front of the D.C. Circuit. And with that in mind, as far as conspiracy goes, expect the following and only the following from Judge Pohl's soon-to-be-released order: a cite to Al-Bahlul, the words “motion denied,” and the judge’s signature at the bottom of the page.