Wells and Larkin have a more comprehensive preview in the works for Thursday's oral argument before the D.C. Circuit in Hamdan v. United States, and I'd encourage folks to wait for their contribution to get a full sense of the issues raised by the briefs. Just to be clear from the outset, though, I don't think it can be denied that this is the most important military commission appeal thus far under the Military Commissions Acts of 2006 and 2009--if for no other reason than that it is the D.C. Circuit's first opportunity to consider the key substantive questions raised by Congress's formal authorization of military tribunals.
With that said, the post that follows offers what I see as the four biggest questions that I have heading into Thursday's argument before Chief Judge Sentelle and Judges Ginsburg and Kavanaugh.
Question 1: Was Monday's mootness order a frolic, or might there be two votes for a mootness dismissal?
I already suggested yesterday why I think there is little to the suggestion that Hamdan's appeal might be moot. But this is where Thursday's argument could be quite illuminating. If the judges spend more than a few minutes asking questions on this issue, it could perhaps testify to an underlying division (or at least uncertainty) on the merits, given the difficult doctrinal obstacles to a mootness-based dismissal (along with the parties' agreement that Hamdan's appeal presents a justiciable controversy).
Question 2: Will the government be asked to defend its change in position on appeal?
The actual question presented in Hamdan's appeal is whether Congress has the constitutional power to subject the offense of"providing material support to terrorism" ("MST") to trial by military commission. As I noted when the government filed its merits brief, its defense of Congress's power to so provide underwent a dramatic shift in position between the Court of Military Commission Review and the D.C. Circuit.Whereas the trial court and the CMCR both rested on Congress's power to define and punish offenses against the international law of nations as the source of its power to codify MST, the Justice Department's brief in the D.C. Circuit largely eschewed that theory (conceding that MST is not recognized as a violation of customary international law) in favor of one predicated on Congress's power to recognize offenses against the "domestic common law of war."
In my view, there are two distinct problems with this new position: (1) it is somewhat lacking for precedent (unlike the law of nations claim); and (2) as such, there is no recognized exception to the jury-trial provisions justifying military jurisdiction, as the National Institute for Military Justice explained in its amicus brief in al-Bahlul (which I co-authored). But whether or not the government's (new) position is convincing, it will be fascinating to see whether the Court of Appeals inquires into why the government changed its litigation position, since the answer may be quite revealing insofar as it suggests vulnerabilities in the decisions below. Put another way, I think we'll learn a lot from whether the D.C. Circuit engages directly on the merits of the government's argument, or also wants to know how the government got there. If questions falling into the latter category come up on Thursday, that could spell trouble for the Justice Department...
Question 3: Will the judges show any interest in the Ex Post Facto Clause issue?
One of the possible explanations for the government's shift in position is to put it on stronger footing with regard to Hamdan's claim that, even if Congress could prospectively subject MST to trial by military commission, Hamdan was convicted in 2008 under a statute passed in 2006 for conduct in which he engaged in 2001 and 2002, and so retroactive application of the MST statute violates the Ex Post Facto Clause. If, per the government's theory, Congress was "merely" codifying an offense long-recognized as a violation of the "domestic common law of war," then the government may have a stronger claim that Hamdan was reasonably on notice of his amenability to criminal liability at the time he committed his offenses.
Folks who follow the blog closely may recall my exchange with Haridimos Thravalos re: whether there is historical support for treating conspiracy as a violation of the laws of war (see his memo here; my response here; his reply here). Although I continue to believe, contra Thravalos, that the Supreme Court plurality got it right in Hamdan v. Rumsfeld, the relevant point for present purposes is that Thravalos's research was limited to the question of whether conspiracy has historically been recognized as a violation of the laws of war, not MST. As we argued in the NIMJ amicus brief in al-Bahlul, the government's historical examples of MST as a law-of-war offense are equivocal, at best--and hardly illustrate the "fair notice" that the Supreme Court's ex post facto jurisprudence has required. [I have a longer reply to Thravalos specifically on the conspiracy issue that I hope to post soon...]
And so, another big question for Thursday's argument is whether the Court of Appeals presses the government specifically on the Ex Post Facto Clause issue as distinct from the congressional power / Article III issues noted above... Given that ex post facto would be a narrower ground on which to invalidate Hamdan's conviction (since it would leave MST in place for post-2006 conduct), an absence of attention to it at Thursday's argument would probably not bode well for Hamdan.
Question 4: Will anyone keep in mind the implications for al-Bahlul?
Finally, perhaps the question that has received the least attention in coverage of Hamdan to date, assuming that the Court of Appeals reaches the merits of Hamdan's challenge to his conviction (and upholds MST as an offense triable by a military commission even for pre-2006 conduct), what will be left for the "other" post-conviction appeal currently pending before the D.C. Circuit, i.e., al-Bahlul v. United States?
The answer is "it really depends." Indeed, there are fairly substantial differences between how the appellants have framed the issues in the two cases. Hamdan's is effectively a facial challenge to the MCA, at least insofar as it includes MST as an offense triable by a military commission. Al Bahlul, in contrast, offers more of an "as-applied" challenge, claiming that the MCA can't constitutionally be applied to him because his commission was not "convened by a military commander in an area of ongoing combat operations or military government." Moreover, al Bahlul also offers a First Amendment defense to the charges against him--another challenge that is necessarily as-applied.
These differences help to explain why al Bahlul has sought initial en banc hearing of his appeal, since an unduly broad ruling in the government's favor in Hamdan might thereby prejudice al Bahlul's ability to fully litigate his challenges to his conviction. Of course, if the D.C. Circuit in Hamdan invalidates MST, that will only bolster al Bahlul's appeal--currently scheduled to be heard before a three-judge panel in September.
* * *
There's a lot more to say about Thursday's argument in Hamdan, much of which I'm sure will be covered by Wells and Larkin. But at least for me, these are the four big things I'll be looking for when the fun begins Thursday morning @ 9:30. Just to be clear, if I were a betting man, I'd still lean toward the government. But I have to think that their merits brief didn't increase those odds...