On June 12, a three-judge panel of the D.C. Circuit handed down its decision in the most recent iteration of Al Bahlul v. United States, vacating defendant Ali Hamza Suliman al Bahlul’s conviction for inchoate conspiracy. Al Bahlul’s other convictions had previously been vacated by the D.C. Circuit sitting en banc; the remaining conspiracy charge was remanded and reconsidered by Circuit Judges Judith Rogers, David Tatel, and Karen LeCraft Henderson.
The Majority Opinion
Judge Rogers, joined by Judge Tatel, wrote for the majority in an opinion that significantly curtails the power of military commissions (and Congress) while reaffirming the primacy of Article III courts in the criminal prosecution process. Al Bahlul made four different claims challenging his conviction: Congress 1) exceeded its Article I, § 8 authority and 2) violated Article III by granting military commissions jurisdiction to try crimes that were not law-of-war offenses; 3) the government violated al Bahlul’s First Amendment rights by putting his thoughts, beliefs, and ideas on trial; and 4) the 2006 Military Commissions Act (MCA) violates the Fifth Amendment. The court ignored the last two claims, focusing instead on the Article I and III arguments and deciding the case on Article III grounds.
Forfeiture and the Standard of Review
The court first had to address whether al Bahlul had forfeited his Article III challenge by not raising it at trial. (As Judge Henderson discusses in her dissent, al Bahlul refused to recognize the military tribunal or participate in his own defense, thus failing to raise substantive legal objections throughout the trial). The court concluded that “Article III structural claim[s] of encroachment on the judicial power” were not subject to forfeiture. The court cited the Supreme Court’s holding to that effect in Commodity Futures Trading Commission v. Schor; though that case considered waiver, the court extended the reasoning to forfeiture as well.
Because the challenge could not be forfeited, the court concluded it would apply de novo review, rather than the less forgiving standard of plain error. The former standard was appropriate, the court noted, because “Bahlul’s Article III challenge implicates the power of the political branches to sideline the federal courts” and thus “goes to the heart of the judiciary’s status as a coordinate branch of government.” Al Bahlul’s guilt was irrelevant — the court was exercising its obligation to protect the system.
Article III and Inchoate Conspiracy
With the standard of review established, the court moved on to the merits. With a few exceptions, the Constitution vests judicial power in the judicial branch; however, congressionally created military commissions are one of those few exceptions. The court therefore considered whether law-of-war military commissions (as distinguished from martial law and military government commissions) could hear conspiracy cases under this Article III exception.
The court relied primarily on the Supreme Court’s 1942 decision in Ex Parte Quirin, where the Court addressed the contours of the Article III exception for law-of-war military commissions. In Quirin, the Supreme Court recognized an exception to Article III that allowed military commissions to try combatants without juries because “international law of war offenses did not entail a right of trial by jury at common law.” In contrast, conspiracy traditionally did entail a jury trial right; the disparity in the traditional remedies weighed against extending the Article III exception for conspiracy.
Moreover, the Quirin Court held that law-of-war military commissions had jurisdiction to try law-of-war violations and that the law of war, as part of international law, was determined by looking to international sources. The government in Al Bahlul conceded that conspiracy was not a violation of international law. The court then considered whether the military commissions could also try domestic offenses, but concluded that neither Supreme Court precedent nor historical practice suggested this was acceptable.
The court then turned to al Bahlul’s Article I arguments. Though the court acknowledged that in some situations the scope of the Article III exceptions can depend on congressional power, in this case the court concluded that the government’s arguments on this front did not change the conclusion that military commissions cannot try inchoate conspiracy crimes.
The court first addressed the government’s contention that the constitutional war powers collectively authorize Congress to grant military commissions jurisdiction over purely domestic offenses. But the court observed that while the war powers establish Congress’s authority to create military commissions, the Supreme Court had turned to the Define and Punish Clause alone to determine the scope of congressional authority to confer jurisdiction. Congress cannot use the Define and Punish Clause to “declare an offense to be an international war crime when the international law of war concededly does not.”
Though the dissent argued that courts must defer to Congress when it acts under the Define and Punish Clause, the majority noted that argument was simply not relevant because “the government has never maintained that Congress defined conspiracy in the 2006 MCA as a violation of the law of nations.” The court distinguished between “acting pursuant to the Define and Punish Clause” and “identifying the content of the law of nations,” observing that Congress here had done the former but not the latter. The court then notes that conspiracy is quite clearly not an independent war crime under international law.
The government also argued that Congress could proscribe conspiracy to commit war crimes as a necessary and proper exercise of its power to define and punish violations of the law of nations. The court rejected this argument, highlighting “the Supreme Court’s repeated reluctance to extend military jurisdiction based on the Necessary and Proper Clause” and concluding the clause could not “allow Congress to do what its express powers do not.” This does not mean that Congress cannot enact legislation to comply with international responsibilities or to criminalize offenses that are not violations of the law of nations; it just cannot not grant jurisdiction over those crimes to military tribunals.
The final section of the majority opinion was devoted to pointing out flaws in the dissent. The court dismissed much of the dissent’s cited precedent as inapposite because it related to military government and martial law military commissions, rather than law of war commissions. The majority also rejected the dissent’s suggestion that it should use the balancing test laid out in Schor to determine whether there might be an Article III exception, but noted that even if it did apply the Schor test, the factors weighed against granting military jurisdiction.
Judge Tatel's Concurrence
Judge Tatel wrote separately in concurrence to explain why he joined an earlier en banc decision upholding the detainee's conspiracy conviction, but now voted to vacate it. The difference, he explained, came down to the standard of review: it was not a plain error for the tribunal to have concluded that it could try a conspiracy case, but reviewed de novo, it became apparent the commissions indeed did not have jurisdiction over such a case. Judge Tatel then reiterated much of the argument concluding that Article III challenges could not be waived or forfeited. While Supreme Court precedent did not directly answer the question, it did send a “clear signal . . . that military-commission jurisdiction is limited to crimes that violate the international law of war.” He concluded by emphasizing that any contrary decision would grant Congress “virtually unlimited authority to bring any crime within the jurisdiction of military commissions.”
Judge Henderson's Dissent
Judge Henderson dissented, vigorously, and at great length. She started with the big picture, accusing the majority of mangling Jackson’s Youngstown categories: though governmental power is supposed to be at its height when Congress and the President work together, the majority decision suggests that international law can somehow subtract from that power. She also noted that the decision inappropriately draws the judiciary into a “thicket” where it lacks the competence and accountability to operate effectively. Judge Henderson argued that this is a especially poor choice in this context, given the high national security stakes and the particularly undeserving defendant.
She then turned to the standard of review. Judge Henderson concluded that the plain error standard should apply because the defendant forfeited his challenges by not raising them at trial. Only subject matter jurisdiction challenges are non-forfeitable, and al Bahlul’s claim is a constitutional one; it did not become jurisdictional just by virtue of being a challenge to a jurisdictional statute. Even if de novo review were available, she would decline to apply it in this case, where doing so requires the court to invalidate a portion of a statute on a national security matter, where the defendant is admittedly guilty, and where there was no reason he couldn’t have raised his constitutional challenges at trial.
Judge Henderson then moved on to the consideration of the merits. She began with Article I and the Define and Punish Clause, arguing the clause grants Congress the power to make conspiracy triable in a military commission. Unlike the majority (and the government), she argued that the international community does consider conspiracy to be a violation of the law of war, and she therefore believed that Congress acted well within its power when it defined conspiracy in the 2006 MCA, and that act deserved significant deference.
Moreover, Judge Henderson believed the Necessary and Proper Clause further augments Congress’s Define and Punish power because “trying by military commission those who conspire to commit war crimes is ‘convenient,’ ‘useful,’ and ‘conducive to the . . . beneficial exercise’ of the Congress’s power to authorize the trial of substantive war crimes.”
Finally, Congress was not acting under the Define and Punish Clause alone, in Judge Henderson's view, but also pursuant to the constitutional war power, which is not “defined or constrained by international law.” Judge Henderson observed that the Supreme Court has never limited Congress to the Define and Punish Clause in setting the military commissions’ jurisdiction. Ultimately, Supreme Court precedent, major international law scholars, and constitutional history all support the argument that the war powers provide Congress the “authority to specify law-of-war offenses triable by military commission.”
Judge Henderson then moved on to the Article III challenges more directly, disagreeing with the majority’s assumption that the statute was automatically unconstitutional just because it fell outside the Judicial Powers Clause. Instead, Judge Henderson believed the court should apply the Schor balancing test to see if the statute could qualify as an Article III exception. Weighing against the commissions’ constitutionality were the facts that a trial for conspiracy implicates private rights and that the commissions exercise federal court powers; she also claimed it is not clear whether al Bahlul consented to trial by military commission, but dismissed this concern by noting that “‘consent’ from an enemy combatant like Bahlul does not meaningfully tip the scales one way or the other.”
However, ultimately the scale tipped in the commissions’ favor: defendants have the opportunity for judicial review by an Article III court; the commissions have limited jurisdiction; Congress had legitimate concerns — national security — that drove it to depart from the Article III courts; and the commissions raise no concerns about the aggrandizement of congressional power.
Finally, Judge Henderson noted that Article III also protects individual rights to a jury trial in criminal cases, but she denied that al Bahlul, as an enemy combatant, ever had any right to a jury trial. Moreover, al Bahlul is not an American citizen on U.S. soil, so constitutional rights do not extend to cover him anyway. Because al Bahlul has no right to a jury, “neither the Criminal Jury Clause nor the Judicial Power Clause of Article III can invalidate his conspiracy conviction."