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Court of Military Commissions Review Upholds Life Sentence for al-Bahlul

Patrick McDonnell
Tuesday, April 2, 2019, 8:25 AM

On March 21, the U.S. Court of Military Commission Review (CMCR) upheld Ali Hamza Ahmad Suliman al Bahlul’s conviction and life sentence for conspiracy to commit war crimes. The court also dismissed Bahlul’s challenge that the military commission that convicted him lacked jurisdiction because the appointment of the convening authority (CA) for the military commissions was statutorily and constitutionally improper.

A U.S. Navy bus passes Camp Delta, a prison at Guantanamo Bay. (Photo: Wikimedia/U.S. Air Force)

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On March 21, the U.S. Court of Military Commission Review (CMCR) upheld Ali Hamza Ahmad Suliman al Bahlul’s conviction and life sentence for conspiracy to commit war crimes. The court also dismissed Bahlul’s challenge that the military commission that convicted him lacked jurisdiction because the appointment of the convening authority (CA) for the military commissions was statutorily and constitutionally improper. Previous Lawfare coverage of the case can be found here and here.

This opinion marks another step on a long, legal journey that began when Bahlul was first charged in 2004. Following a stay and abeyance pending the Supreme Court’s decision in Hamdan v. Rumsfeld, Bahlul was recharged in 2008 and convicted by a military commission of conspiracy to commit war crimes, solicitation, and providing material support for terrorism. He was sentenced to life imprisonment. The ensuing years saw multiple appeals to both the CMCR and the D.C. Circuit. In 2014, the en banc D.C. Circuit vacated Bahlul’s solicitation and material support charges and remanded the remaining conspiracy charge to a three-judge D.C. Circuit panel for reconsideration. The panel ruled in 2015 that the conspiracy charge should also be vacated, but on rehearing en banc the full D.C. Circuit reversed and affirmed the conviction. Because Bahlul’s life sentence followed his conviction on all three charges, the D.C. Circuit directed the CMCR to reconsider the sentence following the vacatur of the solicitation and material support convictions.

On remand, the CMCR considered not only the validity of the sentence but also two additional issues raised by Bahlul: (1) whether, despite the D.C. Circuit’s affirmance of Bahlul’s conspiracy conviction, the CMCR can review the conviction de novo in light of the vacatur of his other charges; and (2) whether the CA who convened Bahlul’s commission was appointed in a manner inconsistent with statute and the Constitution, and whether the commission accordingly lacked subject-matter jurisdiction to try the case.

The CMCR ruled for the government on both additional matters, deciding that de novo review of Bahlul’s remaining conviction was beyond the scope of the court’s review and that there was no infirmity in the appointment of the CA who convened Bahlul’s commission.

Request for De Novo Review of the Remaining Conspiracy Conviction

In addressing Bahlul’s request for de novo review of his conspiracy conviction, the CMCR referred to two concepts in its analysis: the law-of-the-case doctrine and the mandate rule. Quoting the D.C. Circuit, the CMCR explained that “[w]hen there are multiple appeals taken in the course of a single piece of litigation, law-of-the-case doctrine holds that decisions rendered on the first appeal should not be revisited on later trips to the appellate court.” The CMCR noted that the mandate rule is a more powerful version of the law-of-the-case doctrine, in which a lower court does not have the authority to deviate from a superior appellate court’s mandate. The consequence of these rules is that a lower court cannot review issues that a party failed to raise on appeal or those already decided by a higher court. While the CMCR acknowledged Bahlul’s argument that it is not as constrained as the D.C. Circuit in the scope of its appellate review of the military commissions, it concluded that it nonetheless lacked the authority to review Bahlul’s conspiracy conviction a second time, after previously affirming it in 2011. It was this decision that Bahlul appealed to the D.C. Circuit.

The Court also rejected Bahlul’s argument that the D.C. Circuit authorized a review of his conviction through their mandate to reconsider sentencing since his conspiracy conviction is the “sine qua non for his sentence.” If the D.C. Circuit wanted a review of the underlying conviction and not just the sentence, they would have explicitly said so. Instead, their clear language indicated that the CMCR was to reconsider only the sentence imposed.

After ultimately concluding a de novo review would be beyond the permissible scope of their review, the CMCR moved on to the question of the military commission’s subject-matter jurisdiction to try Bahlul.

Validity of the Convening Authority’s Appointment

Before the CMCR could answer the question of whether the CA was improperly appointed, it first had to address whether the court was permitted to entertain the claim at all. The court acknowledged that the previously discussed law-of-the-case doctrine and mandate rule normally prevent a review by a lower court on remand of issues not raised in the initial appeal. However, jurisdictional issues are an exception and can be raised at any time. In reaching this conclusion, the CMCR cited Rule for Military Commission (RMC) 907(b)(1), which states that
“a charge or specification shall be dismissed at any stage of the proceedings if . . . [t]he military commission lacks jurisdiction to try the accused for the offense,” as well as federal court precedent and the U.S. Supreme Court’s interpretation of Federal Rule of Civil Procedure (FRCP) 12(h)(3) as allowing jurisdictional challenges at any stage of proceedings. The CMCR noted the similarity in language between FRCP 12(h)(3) and RMC 907(b)(1) and concluded there was no compelling reason to interpret them differently.

After determining that Bahlul could raise a jurisdictional claim, the CMCR then considered whether Bahlul’s challenge to the validity of the CA’s appointment had jurisdictional implications. The government argued that Bahlul’s motion to dismiss did not involve either his “status or offenses” and therefore left the CMCR’s subject-matter jurisdiction intact, but the court disagreed. Observing that Congress used the Uniform Code of Military Justice (UCMJ) as a model for the 2006 Military Commissions Act (2006 MCA), the court identified analogous provisions and looked at how they have been interpreted. The two principal provisions are Article 18, dealing with the jurisdiction of courts-martial, and Article 22, discussing who may convene a general courts-martial. Citing numerous cases from military jurisprudence, the court concluded that these two articles have been consistently construed to imply that an improperly appointed convening authority would leave the courts-martial without jurisdiction. The CMCR noted that the similarity between the UCMJ articles and the analogous sections of the 2006 MCA serves as a strong indication of Congress’s intent. The court found that Congress wanted reviewing courts to “analyze the jurisdiction of military commissions in the same manner military courts review the jurisdiction of courts-martial.” Even RMC 201(b)(3), as articulated in 2007, requires that, in order to have jurisdiction, a military commission must be convened by an official empowered to do so and each charge must be referred by a competent authority.

The court then turned to the merits of Bahlul’s claim that Susan Crawford, the CA who convened his commission and approved his charges, was improperly appointed. He raised two arguments: (1) The CA is a “principal officer” under the Appointments Clause and therefore must be appointed by the president with the advice and consent of the Senate; and (2) alternatively, Crawford became neither an “officer” nor an “official” when she was appointed by the secretary of defense, as required by Section 948h of the 2006 MCA. The Court addressed these two issues in reverse order.

Section 948h of the 2006 states that “military commissions under [10 U.S.C. §§ 948a et seq.] may be convened by the Secretary of Defense or by an officer or official of the United States designated by the Secretary for that purpose” (emphasis added by the court). The CMCR noted that Crawford was appointed by the deputy secretary of defense to be the director of the Office of the Convening Authority (OCA) prior to her appointment as the CA. The court had to address whether her appointment to the directorship was proper and if that resulted in her being an “officer” or “official” for the purposes of appointment to be the CA. The court found that the deputy secretary can perform duties and exercise certain powers prescribed by the secretary, including delegating authority to the CA as well as the director of the OCA. The court went on to note that there is nothing that specifically or expressly limits the authority of the deputy secretary respecting military commissions in the 2006 MCA, the Manual for Military Commissions (MMC), or the Regulation for Trial by Military Commission (RTMC). Therefore, the deputy secretary had the authority to appoint the OCA director.

The CMCR then analyzed whether the OCA director is either an “officer” or an “official.” Bahlul argued that the term “officer” should be read to mean a military officer in the context of Section 948h. Even then, “officer” could mean one exercising “significant authority pursuant to the laws of the United States . . . and must therefore, be appointed in the manner prescribed by [the Appointments Clause].” Regardless, the court decided not to fully address the “officer” question and instead determined that Crawford was an “official” when she served as OCA director. Applying the rule of surplusage, the court interpreted Section 948h as concerning two different categories of individuals: officers and officials. This resulted in the CMCR rejecting Bahlul’s assertion that an “official” is the same as an “officer” for the purposes of the Appointments Clause. Finding no support in case law, and believing Congress could have appropriately narrowed the language, the CMCR held that the use of “official” was meant to increase the reach of the provision beyond officers, however defined.

Seeing no definition of “official” in the 2006 MCA, the court turned to an ordinary and natural meaning analysis. Looking to Black Law’s Dictionary and the U.S. Code, the court found the term “official” to be broad in scope and inclusive of government agents that carry some level of sovereign power but fall short of exercising the significant authority of officers as described in the Appointments Clause. Crawford, the CMCR noted, as director of the OCA and a member of the Senior Executive Service, held a national security position with authority to carry out some federal, sovereign power responsive to public policy. She was, therefore, an “official” within the ordinary meaning of the term.

The court then considered Bahlul’s first argument that, as convening authority, Crawford was a “principal officer” requiring a presidential appointment and Senate confirmation. The court quickly acknowledged that as the CA, Crawford acted as an “officer of the United States” for Appointments Clause purposes. The dispositive question was whether the CA role qualifies as a principal officer or as an inferior officer, the latter of which can be appointed by a department head—in this case, the defense secretary—if authorized by Congress. The court cited Justice David Souter’s concurrence in Weiss v. United States, in which he concluded that military judges are inferior officers for Appointments Clause purposes because “the chosen method for selecting military judges shows that neither Congress nor the President thought military judges were principal officers,” and “in the presence of doubt deference to the political branches’ judgment is appropriate.” The court additionally looked at Edmond v. United States, which held that civilian judges on the Coast Guard Court of Criminal Appeals were inferior officers because they were supervised by higher executive officials and subject to review by the Court of Appeals for the Armed Forces (CAAF), as well as Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., a D.C. Circuit case in which the court, while declaring copyright royalty judges principal officers, noted that the power of a supervising officer to remove these judges without cause would be enough to make them inferior officers.

In the military commissions context, the convening authority is under the control of the defense secretary and her decisions are subject to binding review by the CMCR. Furthermore, the defense secretary can remove the CA without cause. Taking the above in conjunction with Congress’s authorization of the defense secretary to appoint the CA, the court concluded that Crawford had authority as an inferior officer to convene Bahlul’s military commission. Therefore, the military commission Crawford convened did not lack subject-matter jurisdiction to try Bahlul.

Life Sentence Affirmed in Light of Vacatur of Other Convictions

The court finally turned to the original reason for the remand: whether there should be any changes to Bahlul’s life sentence in light of the fact that only his conspiracy conviction remains valid. To answer this question, the court looked to United States v. Winckelmann, a CAAF case that outlines four factors for determining whether to reassess a sentence or order a rehearing: (1) whether there has been a dramatic change in the penalty landscape or exposure; (2) whether sentencing was by members or a military judge alone; (3) whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type with which appellate judges should have the experience and familiarity to reliably determine what sentence would have been imposed at trial. Although Winkelmann addresses resentencing under the UCMJ, the CMCR thought the factors equally applicable to the military commissions context.

The court concluded that, considering the Winckelmann factors, reassessment of Bahlul’s sentence was within the court’s purview. The CMCR noted that Bahlul’s remaining conviction for conspiracy to commit war crimes carries a maximum punishment of a life sentence on its own; the conspiracy charge captures the “gravamen of the criminal conduct at issue” and evidence presented to establish the vacated convictions of solicitation and material support for terrorism were also admissible to establish conspiracy; and conspiracy to commit war crimes, while seemingly a novel charge, is not so distinct from conspiracy to commit murder that the court could not reliably determine what the sentence would have been if imposed at trial. Considering the above, the CMCR held that, even absent the error, the sentence at trial would have been confinement for life. The court commented that it considered the sentence an appropriate punishment and rejected Bahlul’s claim that it was inappropriately severe.

In accordance with the 2009 Military Commissions Act, Bahlul may appeal the CMCR’s judgment to the D.C. Circuit within 20 days of the notice of judgment.

Patrick McDonnell is a graduate of Harvard Law School and the Princeton School of Public and International Affairs. Previously he spent five years as an Army intelligence officer with deployments to Europe and Afghanistan. The views expressed here are his own and do not reflect those of any agency or department of the United States Government.

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