<em>Al Bahlul</em> and the Long Shadow of Illegitimacy

Steve Vladeck
Saturday, October 22, 2016, 9:59 AM

The number of factual and analytical errors that one can find in the five opinions on the side of the majority in the en banc D.C. Circuit's ruling in Al Bahlul v. United States ​is pretty stunning.

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The number of factual and analytical errors that one can find in the five opinions on the side of the majority in the en banc D.C. Circuit's ruling in Al Bahlul v. United States ​is pretty stunning. Even the very first sentence of the mostly descriptive per curiam opinion ("Bahlul is a member of al Qaeda who assisted Osama bin Laden in planning the September 11, 2001, attacks on the United States.") is an indefensible micharacterization of the record, which, at most, establishes that Bahlul "swore an oath of loyalty to Osama bin Laden, served as bin Laden’s personal secretary, and made al Qaeda recruitment videos," not that he played any role in the attacks themselves. Then there's Judge Kavanaugh's rather... one-sided... reading of the historical record, notwithstanding rather compelling analyses (which he fails to cite) demonstrating why the examples he marshals in support of trying inchoate conspiracy before a military commission utterly fail to persuade. And even Judge Millett, who would have rested her affirmance of Al Bahlul's conviction on the rather dubious ground that a challenge to the constitutional jurisdiction of a military commission can be forfeited (but see the five ​arguments to the contrary in footnote 1 of Judge Kavanaugh's concurrence), also applied "plain error" review to Al Bahlul's equal protection argument--even though that's the one objection that he quite clearly did​ make on the record at trial.

Rather than comprehensively catalog how surprisingly sloppy the opinions are, though, I was impelled to write something in response to Peter Margulies, who suggested yesterday that Thursday's ruling "solidifies the legitimacy of commissions in U.S. counterterrorism law and policy." Frankly, I find this contention mind-boggling. Rather than hand down a majority opinion conclusively settling the fundamental constitutional question that has beset the Guantánamo commissions from their inception (which might have had the effect Peter describes), the fractured result handed down on Thursday leaves that question open​, at least as a matter of D.C. Circuit precedent--and just might (whether or not it ​should) dampen the ardor of some of the Justices for taking this question up via certiorari. Just like the August 30 D.C. Circuit panel ruling in Al-Nashiri​, which kicked a major jurisdictional question in that case down the road (in favor of a post-conviction appeal a decade from now), Thursday's decision does very little, in my view, to resolve the long shadow of illegitimacy that continues to loom over the commissions. But don't take my word for it; here's what Judge Kavanaugh wrote in his concurrence from Thursday: "The question of whether conspiracy may constitutionally be tried by military commission is extraordinarily important and deserves‎ a‎ 'definitive answer.'‎ ‎The question implicates an important part of the U.S. Government’s‎ war ‎strategy. ‎‎And ‎other cases in the pipeline require a clear answer to the question. This case unfortunately has been pending in this Court for more than five years. It is long past time for us to resolve the issue squarely and definitively."

I couldn't agree more. Reasonable folks will surely continue to disagree over the answer​ to the Article III question in Al Bahlul​--and I don't mean to relitigate that debate here. But as I wrote after the en banc oral argument last December, regardless of how the Article III question is ultimately resolved, "[a]t some point, wouldn’t resolution of the Article III question actually be useful for the military commissions (and not just for we who write about them)? Or is this all just an elaborate game to play out the string — and, as such, a waste of a whole lot of time, energy, and judicial resources?" Peter seems to take the latter view--concluding that "[a]n authoritative decision on military commissions should await a case that clears away [the case-specific issues at the heart of Judge Millett's and Wilkins's concurrences], allowing courts to squarely confront the broader issue of Congress’s power to establish military commissions during armed conflicts." I just don't understand how one can reach that conclusion in the same post in which they've declared that Thursday's ruling "solidifies the legitimacy of [the] commissions."

But more fundamentally, I don't know why it's in anyone​'s interests to continue to duck the Article III question--especially when Judge Millett's and Judge Wilkins's purported reasons for doing so are so transparently weak. Whether military commissions can try offenses other than international war crimes has been the central constitutional question surrounding the Guantánamo trials since at least 2006. Until and unless that question is conclusively resolved by the courts, the commissions will continue to operate under a long (and ever-lengthening) shadow of illegitimacy. In the end, I can't see how that's good for anybody, except perhaps as a continuing jobs program for military commission lawyers.

Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

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