Much could be said about this morning’s argument, before a three-judge panel of the D.C. Circuit, in the long-running military commission case of Ali Hamza Ahmad al Bahlul v. United States. In this little read-out, I’ll make this lone observation (one I see Steve also mentioned too, over at Just Security): with his questions to both parties today, Judge David Tatel demonstrated keen sensitivity to a key precedent, Ex Parte Quirin.
Tatel pressed both appellant and appellee hard on precisely what the Supreme Court’s famed Nazi saboteurs opinion had held, as opposed to what it merely said---and what that distinction might mean for resolution of a critical issue left unresolved by the D.C. Circuit’s July en banc opinion in Al Bahlul: whether the jurisdiction of a Guantanamo military commission constitutionally may include only international offenses, or both international as well as domestic ones.
The detainee's attorney Michel Paradis unsurprisingly took the former position, arguing that under Quirin, “law of war” commission jurisdiction simply does not extend to conspiracy, a concededly domestic law offense. Consistent with that view, when asked by the court, Paradis claimed Quirin had held that the “law of war,” so far as military commissions are concerned, consists of the international law of war---full stop. Tatel wasn’t having that. Quirin, the judge said, pointedly declined to explore the outer limits of commission jurisdiction; indeed it “held” (in the words of the opinion itself) “only” that the sabotage specification against the captured Nazis “constitute[d] an offense against the law of war which the Constitution authorizes to be tried by military commission.” That didn’t sound like a holding one way or the other on the (in)validity of domestic law offenses in the law of war commission setting. To be sure, Judge Tatel also pointed out that the Quirin opinion is littered with talk to the effect that the law of war is, in fact, entirely international. Nevertheless, having not actually held that domestic offenses can never be brought in a military commission, consistent with the Constitution, Quirin did not actually resolve the question now presented by Al Bahlul’s case. Or, at least, it did not do so in a fashion directly binding so many years later, on the D.C. Circuit.
But if not binding, then what status does Quirin’s international law-ish language have exactly? Tatel later put the question to the Justice Department’s John DePue, who had cited Quirin for the notion that the “law of war” encompasses certain domestic as well as international offenses. Spying, for example, was once believed to violate against the international law of war (and Quirin said that it did in fact), yet these days many think spying is a crime regulated by domestic law only. Again Judge Tatel drilled down. He said Quirin’s "law of war" dicta was both sprinkled throughout the Supreme Court’s 1942 opinion and quite "strong" in character---and, it seemed, also persuasive. (For his part, the government’s attorney insisted that so far, the Supreme Court hasn’t clearly held that the law of war is international only; Quirin is thus open to interpretation. In the meantime, DePue argued, Congress must have the power to subject to military commission trial even purely domestic offenses, provided those have a nexus with an armed conflict, and a “palpable effect” on the nation.)
What might this little colloquy over Quirin portend? I don’t know but---the usual caveats and disclaimers made---I will venture a modest guess: Judge Tatel’s handling of Quirin probably doesn’t augur well for the United States. Today's oral argument brought me back to Justice Souter's Boumediene concurrence, where the latter eloquently wrote of “dictum well considered." As I read it, the concurrence suggested that certain language in the Court’s 2004 Rasul decision, regarding the historical reach of habeas, essentially had foretold the constitutional habeas ruling that the Supreme Court ultimately handed down in Boumediene, in 2008. As best I could tell from his queries, Judge Tatel today stood ready to treat Quirin’s dictum as well-considered, too---or as he put it, “strong."
Strong enough, perhaps, to inform a decision on the limits of military commission jurisdiction---and to hand Al Bahlul a victory.