Margulies, Peter

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship7-16-2014Al Bahlul and Article III: A Reply to Marty andStevePeter MarguliesRoger Williams University School of LawPeter MarguliesFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the Constitutional Law Commons, Military, War, and Peace Commons, and the NationalSecurity 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, Al Bahlul and Article III: A Reply to Marty and Steve, Lawfare ( July 16, 2014, 4:00 PM),https://www.lawfareblog.com/al-bahlul-and-article-iii-reply-marty-and-steveTERRORISM TRIALS: MILITARY COMMISSIONSAl Bahlul and Article III: A Reply to Marty and SteveBy Peter Margulies  Wednesday, July 16, 2014, 4:00 PMMarty and Steve’s post on al Bahlul (and Steve’s post here) is right that the D.C. Circuit’s decision should not be read as a green light for inchoateconspiracy charges in military commissions.  However, Marty and Steve go off course in magnifying the modest issues remanded to the panel in alBahlul, particularly the impact of Article III on military commissions.  In the context of this case, neither of these issues is as complex as the Ex PostFacto Clause question that the en banc D.C. Circuit decided.First, a point of clear agreement between Marty, Steve, and me: Nothing in the decision opens the ¾oodgates on inchoate conspiracy charges forpre-Military Commissions Act (MCA) conduct.  The limited holding in the case, which upholds the conspiracy charge in al Bahlul’s case onlybecause it did not constitute “plain error,” is hardly a ringing endorsement.After this common ground, however, Marty and Steve go astray with an unjusti½ably broad view of Article III restrictions on military commissions. Marty and Steve are of course right that Article III imposes constraints.  However, their argument goes far beyond the leading precedents on thisquestion, Ex Parte Milligan and Ex Parte Quirin.Marty and Steve’s sweeping Article III argument, which owes much to Steve’s important article on military justice, categorizes military commissionsas an “exception” to Article III’s requirement that independent federal courts conduct criminal trials governed by federal law.  In Ex Parte Quirin,Chief Justice Stone explained that military commissions aren’t an “exception” to Article III.  Rather (p. 39), they simply “are not courts in the senseof the Judiciary Article.”  Military commissions, which the Framers were clearly familiar with because of General Washington’s use of a militarycommission to try British Maj. John Andre during the Revolutionary War, are a necessary incident of war.  A state conducting an armed con¾ict withanother party must have a means to hold its adversaries accountable for violations of the law of armed con¾ict.  The military commission servesthat purpose; it’s not a court in the Article III sense, and couldn’t be, given what Chief Justice Stone described as its usual functioning under“conditions precluding resort to such procedures.”Article III limits on commissions stem from the test the Court adopted in Milligan and interpreted in Quirin: to avoid impairing the right to a jurytrial under Article III (and the right to a grand jury under the Fifth Amendment), the Constitution only permits commissions when, 1) courts are notopen, or, 2) the defendant is a belligerent in an armed con¾ict.  The Milligan Court found that Lambdin Milligan was not a belligerent, despite hisattempted subversion of the lawful government of Indiana during the Civil War.  In contrast, the Quirin Court found that the defendants in that casewere belligerents who had disembarked on the East Coast of the U.S. during World War II on orders of the Nazi High Command and shed theiruniforms to enable acts of sabotage.When courts are not open, military commissions function as a source of law and order, as they did during war-torn Missouri during the Civil War. Nothing in Milligan questioned the legality of the Missouri commissions.  Indeed, the al Bahlul majority unduly discounts the commissions’ lawfulrole.  The majority opinion (p. 46) reports that one commission convicted a defendant, Henry Willing, for the vague transgression of being a “badand dangerous man.”  The majority doesn’t share the main charges against Willing, whom members of the commission found had conspiredsuccessfully to destroy portions of a railroad used by Union troops.  Without a commission to hold him accountable, Willing would have continuedhis work with impunity.Quirin explains that while the dysfunction of civilian courts is one basis for the convening of military commissions, it is not the only one.  Evenwhen courts are open, Quirin held, military commissions are still appropriate for the trial of belligerents in the con¾ict, such as the Nazi saboteursconvicted in that case.  A ½nding that a defendant is a belligerent is a suf½cient assurance that the convening of the commission is not subject toArticle III’s requirements.Al Bahlul was clearly a belligerent in the noninternational armed con¾ict between the U.S. and Al Qaeda.  Evidence at his military commission trialincludes a letter al Bahlul wrote acknowledging his “role” in the 9/11 attacks, and his interviews to the same effect with FBI agent Ali Soufan (whoseexcellent work Marty and Steve don’t acknowledge, relegating Soufan to the ranks of unnamed “Guantanamo interrogators”).While Marty and Steve don’t directly address the question of Congress’s power to convene military commissions under Article I, the best answer isthat courts should provide Congress with a measure of deference, as Judge Janice Rogers Brown explained in her concurrence (see my post).  Thatdeference is not unlimited.  At the very least, inchoate conspiracy charges should entail some nexus to an acknowledged war crime, such as themurder of civilians.  Congress surely had the power to establish a commission to try al Bahlul’s conduct, which entailed intentional participation ina common plan resulting in a completed war crime (the 9/11 attacks).In sum, Marty and Steve are right about future cases.  However, they exaggerate the dif½culty of issues facing the panel that will hear remainingissues in al Bahlul’s appeal.  Reading Milligan and Quirin together should ease the panel’s task.Topics: Terrorism Trials: Military Commissions, Terrorism Trials & InvestigationsPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National SecurityLaw and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York:NYU Press, 2010).

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