Margulies, Peter

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The D.C. Circuit’s En Banc Decision in Bahlul: Sui Generis or Guidance for Future Military Commissions?

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship10-21-2016The D.C. Circuit’s En Banc Decision in Bahlul: SuiGeneris or Guidance for Future MilitaryCommissions?Peter MarguliesRoger Williams University School of LawFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the Military, War, and Peace Commons, and the National Security Law CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, The D.C. Circuit’s En Banc Decision in Bahlul: Sui Generis or Guidance for Future Military Commissions?, Lawfare(Oct. 21, 2016, 3:51 PM), https://www.lawfareblog.com/dc-circuits-en-banc-decision-bahlul-sui-generis-or-guidance-future-military-commissionsMILITARY COMMISSIONSThe D.C. Circuit’s En Banc Decision in Bahlul: Sui Generis or Guidance forFuture Military Commissions?By Peter Margulies  Friday, October 21, 2016, 3:51 PMThe en banc D.C. Circuit’s af½rmance of the military commission conviction of Ali Hamza al Bahlul for conspiracy (see Lawfare’s summaryhere) solidi½es the legitimacy of commissions in U.S. counterterrorism law and policy. As President Obama put it in his 2009 NationalArchives speech, commissions have played a role in U.S. armed con¾icts since the Revolutionary War. However, the six judges who voted toaf½rm Bahlul’s conviction as consistent with the U.S. Constitution’s Article III also focused on a matter related to this particular case:Bahlul, in the words of Judge Patricia Millett’s concurrence, “actively prepared for al Qaeda’s attacks on the United States on September 11,2001.” For judges Patricia Millett and Robert Wilkins, who supplied the margin of victory for the government in the 6-3 decision, Bahlul’s9/11 role was central. (Jim Schoettler and I ½led an amicus brief supporting af½rmance on behalf of a group of scholars and former JAGs andnational security of½cials; Judge Wilkins cited our brief in his concurrence.)Bahlul’s 9/11 role allowed judges Millett and Wilkins to resolve this case narrowly. The Supreme Court’s 1942 decision in Ex parte Quirinheld that military commissions can try defendants for violations of the laws of armed con¾ict (LOAC), even though the specialized judges inthose tribunals lack Article III’s safeguards of lifetime tenure and protected levels of compensation. International treaties and tribunalsinterpreting LOAC have authorized conspiracy as a form of liability for a completed offense, such as the murder of civilians. On this view,those who plot the murder of civilians that actually occurs are just as guilty as those who pull the trigger. However, treaties andtransnational tribunals have generally been wary of recognizing liability for inchoate conspiracy, which entails mere agreement without acompleted offense (genocide is the sole exception). The targeting of civilians that occurred on September 11 was a completed offense underLOAC (assuming that as of September 11 the U.S. was in an armed con¾ict with Al Qaeda – a matter not at issue in Bahlul’s case). Focusingon Bahlul’s role in the attacks, which under international law could merely entail serving as a “cog in the wheel,” makes rejection of Bahlul’sArticle III challenge relatively straightforward.To support this view, both Judge Millett and Judge Wilkins cited Bahlul’s admitted administration of the bayat (the Al Qaeda loyalty oath) toMohamed Atta, the straw boss of the 9/11 attacks’ operational phase, and Ziad Jarrah, the hijacker-pilot of United Airlines Flight 93, whichcrashed in Pennsylvania. Also relevant was Bahlul’s service as a “minder” to Atta and Jarrah who kept the two on task during their stay atOsama bin Laden’s compound prior to the attacks. Furthermore, judges Millett and Wilkins cited Bahlul’s role in the preparation of Atta andJarrah’s “martyr wills,” which spun their twisted motives for the bene½t of future Al Qaeda recruits.For Judge Wilkins, the tracking of this conduct in the charges’ overt act speci½cations, the proof at trial, and the speci½c ½ndings bymembers of the military commission provided suf½cient indicia of choate character to bring Bahlul’s conviction under Quirin’s rubric. Theonly element necessary for conspiracy as a form of liability missing from Bahlul’s conviction was a formal ½nding that 9/11 actually occurred.However, apart from conspiracy theory “truthers,” no one seriously disputes the essential facts of the attacks. Despite the lunacies oftruthers, birthers, and other acolytes of delusionary theories that have become salient in this bizarre election season, the failure to formally½nd that 9/11 actually happened seems like an awfully thin reed for vacating a conviction that in other respects clearly charged andadjudicated violations of international law.Judge Millett’s concurrence, in addition to stressing Bahlul’s role in the 9/11 attacks, centered on another aspect particular to this case:Bahlul’s forfeiture of his argument that Article III permitted his trial only in an Article III court, not in a military commission. Judge Millettfound that Bahlul’s failure to raise this claim below shifted the standard of review applicable to his conviction. Instead of reviewing theconviction de novo, the court according to Judge Millett should review only for plain error.As Judge Millett put it, limiting review when a defendant has failed to make an argument below “serves a vital function in the criminaljustice system”: it makes judicial proceedings manageable and facilitates orderly appellate review by assuring that a trial court has theopportunity to create a record on all relevant issues. According to Judge Millett, defendants like Bahlul who seek to pick and choose whenthey will litigate vital issues do a disservice to the system. While a speci½c objection by a defendant at trial will preserve his or her claims,the “generic diatribe” launched by Bahlul, who rejected the United States’ “earthly laws and international earthly laws,” did not meet thisstandard. Based on this view, Judge Millett also found that Bahlul’s challenge did not go to the non-forfeitable issue of subject matterjurisdiction, but simply to Congress’s power.  Analyzing Bahlul’s conviction on a plain error standard, Judge Millett agreed with JudgeWilkins that the charges, proof, and ½ndings in the case were suf½ciently choate in character to support military commission jurisdiction.Speci½cally, Judge Millett cited the links to Bahlul’s admitted role in the completed crime of the 9/11 attacks. The sui generis nature of Bahlul’s conviction, which mattered to judges Millett and Wilkins in this 6-3 case and therefore supplied themargin of victory for the government, may dissuade the Supreme Court from granting certiorari, as Steve suggests. However, the Court maybelieve that guidance on future commission cases is also useful, making certiorari more likely. To provide such guidance, Judge BrettKavanaugh wrote for judges Grif½th, Henderson, and Brown in taking an expansive view of Congress’s power to enact military commissions(Henderson also incorporated by reference her insightful dissent to the earlier panel opinion that the full D.C. Circuit vacated). JudgesRogers, Tatel, and Pillard, who dissented, sought to provide guidance that would sharply limit Congress’s authority.Judge Kavanaugh’s expansive view would untether Congress’s power from international law. Even though the De½ne and Punish Clause,which authorizes Congress to de½ne and punish offenses against the “law of nations,” has frequently been viewed as the source of Article Iauthority to convene military commissions, Judge Kavanaugh took a wider view, regarding Congress’s war powers, taken together, assupplying the requisite authority. Based on this wider view, Judge Kavanaugh declined to pinpoint the “outer boundaries” of Congress’spower to establish military commissions, except to assert that this power can be exercised over enemy belligerents and has no necessaryrelationship to international law. Based on this analysis, Judge Kavanaugh asserted that even a purely inchoate conspiracy to commit a warcrime can be tried by a military commission.My own view (see my article here) is that international law does indeed provide a limit, but one out½tted with a measure of deference toCongress’s Article I authority over wartime exigencies. Based on this analysis, a charge with a reasonable relationship to an acknowledgedwar crime would be triable in a military commission. An inchoate conspiracy to murder civilians would meet this standard, even without acompleted act; Congress should not be obliged to wait until an enemy belligerent’s murderous designs ripen into actual mayhem. However,conspiracy to commit offenses not recognized under international law, such as the mere donation of money to a terrorist group, should betried in Article III courts.The dissent by judges Rogers, Tatel, and Pillard took another tack entirely, rejecting this view, Judge Kavanaugh’s more expansive account,and the case-speci½c view adopted by judges Millett and Wilkins. The dissenters asserted that Article III restricts Congress, even in casesinvolving enemy belligerents who have plotted to commit acknowledged war crimes. This grudging account of Congress’s wartime authorityis at odds with the Framers’ understanding that Congress needs some latitude in its authority under the De½ne and Punish Clause. The bestindication of the joint dissent’s misunderstanding of the Framers’ scheme is its treatment of Justice Story’s landmark 1820 opinion in apiracy case, United States v. Smith. Justice Story, noting the Framers’ awareness that ever-evolving international law could never be“completely ascertained and de½ned,” asserted that the De½ne and Punish Clause contemplated a measure of deference to Congress. In thisrespect, Justice Story was echoing Madison, who argued in Federalist No. 42 that “[f]or the sake of certainty and uniformity,” it was“necessary and proper” for Congress to have a measure of discretion in de½ning offenses against international law.It is reasonable to assume that the Framers wished Article III to track the latitude that the De½ne and Punish Clause supplied, particularly inthe exigencies of wartime. The joint dissent discounts this logic, transforming Justice Story’s reasoning into a strict limit on Congress’spower – exactly what Story wished to avoid.  However, the dissent is correct that Judge Kavanaugh’s opinion does not cabin militarycommissions suf½ciently, particularly regarding adjudication of conduct that does not violate international law, such as mere donations toterrorist groups. In sum, the distinctive nature of Bahlul’s case makes it an imperfect vehicle for broader pronouncements on Congress’s power to establishmilitary commissions. The opinions of judges Millett and Wilkins make this clear, anchoring their views in this case’s special circumstances.An authoritative decision on military commissions should await a case that clears away those distractions, allowing courts to squarelyconfront the broader issue of Congress’s power to establish military commissions during armed con¾icts. Topics: Military CommissionsTags: Al-Bahlul v. United StatesPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, NationalSecurity Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the BushAdministration (New York: NYU Press, 2010).

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The D.C. Circuit’s En Banc Decision in Bahlul: Sui Generis or Guidance for Future Military Commissions?

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