Published by The Lawfare Institute
in Cooperation With
As I explained on Sunday, one way to understand the diffference between the majority and dissenting opinions in last Friday's D.C. Circuit decision in al Bahlul v. United States is as reflecting two different methodological approaches to the question of whether Congress can empower non-Article III military commissions to try "domestic" offenses like inchoate conspiracy. Thus, Judge Rogers's opinion for the majority, by focusing on the specific justifications the Supreme Court has previously provided for military commissions (and why inchoate conspiracy can't be reconciled with those justifications), took a more formal approach to assessing the scope of the permissible departure from Article III, whereas Judge Henderson's dissent, by focusing on the multifactor balancing test the Supreme Court has often looked to in assessing the scope of the "public rights" exception to Article III, endorsed a more functional analysis. To similar effect is my friend Peter Margulies' post criticizing the majority and defending Judge Henderson's "pragmatic" analysis.
But lest my post from Sunday leave the wrong impression, I don't think the result in al Bahlul turns on whether one applies more formal or more functional analysis to the question of whether non-Article III military commissions should be allowed to prosecute wholly domestic offenses in these circumstances. Thus, whereas Sunday's post endeavored to explain why the majority correctly resorted to formalism in resolving al Bahlul's Article III challenge to his conspiracy conviction, I also want to explain why, properly construed, the Supreme Court's more functional approach in the "public rights" context ought to have produced the same result here.
I. Describing the "Functional" Approach to Non-Article III Federal Courts
In his post, Peter wrote that the functional approach to non-Article III federal adjudication "asks, 1) whether a non-Article III tribunal facilitates Congress’s goals in the exercise of its Article I powers, and, 2) whether a limiting principle curbs the risk to judicial independence." Off the top, it's worth stressing that this is not quite how the Supreme Court itself has put it. Here's Justice O'Connor writing for the Court in CFTC v. Schor, the case in which the Court most emphatically embraced the multifactor balancing test first suggested by Justice Harlan in Glidden Co. v. Zdanok:
Among the factors upon which we have focused are  the extent to which the “essential attributes of judicial power” are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,  the origins and importance of the right to be adjudicated, and  the concerns that drove Congress to depart from the requirements of Article III.
Thus, in Schor, the Court upheld the power of the Commodity Futures Trading Commission (CFTC)--a federal administrative agency--to adjudicate a state-law counterclaim filed as part of an adversary reparation proceeding against a commodities broker. (There was no question that the agency had power to adjudicate the federal reparations claim, which all agreed was a "public right" that could be resolved by a non-Article III tribunal.) In upholding the agency's power to also resolve a state-law counterclaim, Justice O'Connor deemed it essential that "The CFTC adjudication of common law counterclaims is incidental to, and completely dependent upon, adjudication of reparations claims created by federal law, and in actual fact is limited to claims arising out of the same transaction or occurrence as the reparations claim." In other words, compared to the underlying federal law "public rights" question that was clearly within the jurisdiction of the CFTC, functional analysis justified allowing the CFTC to also resolve private-right state-law counterclaims given both (1) the narrow sweep of such claims; and (2) the difficulties that would arise if such claims couldn't be brought as part of reparations proceedings based upon the same underlying facts.
II. Applying the Functional Approach to Military Commission Trials of Domestic Offenses
As applied to the question of whether non-Article III military commissions should be allowed to try wholly domestic offenses like inchoate conspiracy (the question in al Bahlul), Schor's multi-factor balancing test does not come out nearly as obviously in favor of non-Article III jurisdiction as it did in Schor.
Consider, for example, the first prong of Schor--"the extent to which the 'essential attributes of judicial power' are reserved to Article III courts, and, conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts." In Schor itself, Justice O'Connor emphasized that allowing the CFTC to entertain the small class of state-law counterclaims at issue "leaves far more of the 'essential attributes of judicial power' to Article III courts," since, among other things, the CFTC "does not exercise 'all ordinary powers of district courts,' and thus may not, for instance, preside over jury trials or issue writs of habeas corpus." Here, in contrast, the military commissions are expressly designed to act as trial courts, to preside over criminal trials (with military "juries"), and to exercise the "essential attributes of judicial power" by, among other things, rendering criminal verdicts and sentences. In addition, because these are criminal proceedings, there are far fewer opportunities for plenary appellate review (which, eventually, is handled by the Article III courts) than there would be in civil cases--all the more so given how narrowly the Court of Military Commission Review and the D.C. Circuit have thus far construed their interlocutory appellate jurisdiction vis-a-vis the commissions.
Even at a more general level, it shouldn't be too controversial to observe that federal crimes are generally prosecuted in Article III courts--and that non-Article III courts historically have not, and do not, exercise jurisdiction over domestic federal criminal offenses. The only exceptions are federal territorial courts (state courts don't hear federal prosecutions), the jurisdiction of which is limited to offenses committed within those territories; and military commissions, which have historically only exercised jurisdiction over international war crimes (or supplanted civilian courts in areas under martial law or military occupation). Thus, and unlike the kinds of civil claims at issue in the public rights context (which typically arise under state law and are routinely not only heard by non-Article III courts, including state courts, but are resolved under state, not federal law), it's not at all obvious why the first Schor factor weighs in favor of, as opposed to against, non-Article III military adjudication of domestic federal crimes.
Similar analysis applies to the second Schor factor--"the origins and importance of the right to be adjudicated." Compared to state-law civil counterclaims filed as part of CFTC reparation proceedings, it cannot be denied that criminal prosecutions--and the loss of liberty (if not life) that they implicate--involve the most fundamental and important of rights to be adjudicated. Indeed, we've already seen the extent to which these prosecutions raise a number of significant federal constitutional and statutory questions, many of which are raise matters of first impression. If the purpose of the second Schor factor is to prefer Article III adjudication for especially novel and/or significant legal claims, then, once again, it's hard to see how this factor weighs in favor of non-Article III military adjudication of domestic federal crimes.
The third Schor factor--"the concerns that drove Congress to depart from the requirements of Article III"--is a bit murkier. In Schor, Justice O'Connor stressed that, "When Congress authorized the CFTC to adjudicate counterclaims, its primary focus was on making effective a specific and limited federal regulatory scheme, not on allocating jurisdiction among federal tribunals." One could make a similar argument about the Military Commissions Acts of 2006 and 2009, which, charitably, create a "specific and limited federal regulatory scheme," and don't divest the ordinary Article III courts of criminal jurisdiction that they would otherwise possess. At the same time, one could also argue that Congress created the commissions specifically to subvert the Article III courts, or, at the very least, to avoid the procedural and evidentiary protections that would automatically apply to proseuctions in those tribunals. So perhaps the third Schor factor is best understood as a wash--with decent arguments both supporting and militating against non-Article III military adjudication of domestic federal crimes.
III. How Judge Henderson Reaches a Different Result
If you're scoring at home (or even if you're by yourself), two of the Schor factors therefore seem to cut against non-Article III military jurisdiction over domestic criminal offenses, and third is a wash. If that's true, then how did Judge Henderson nevertheless conclude that such jurisdiction is supported by the Schor test? What follows are quotes from the relevant discussion, excerpted from pages 74-79 of her dissent, with my analysis interspersed thereafter:
First, and most importantly, the Congress has subjected the military commission to judicial review. The 2009 MCA, like its 2006 predecessor, allows the enemy combatants held at Guantanamo Bay, Cuba, to appeal their convictions to this Court, after intermediate review by the CMCR. We then review de novo all “matters of law” that an enemy combatant preserves for appeal, with the opportunity of certiorari review by the Supreme Court. This safeguard “provides for the appropriate exercise of the judicial function in this class of cases” and keeps the military commission within the bounds of law. As the Supreme Court has repeatedly recognized, the availability of de novo review of questions of law by an Article III court substantially allays any Judicial Power Clause concerns with a given statutory arrangement. . . .
All of this is descriptively accurate, but misses what I've always understood to be the point of Schor. Yes, Article III courts have de novo appellate review on questions of law arising out of the military commissions, but these are criminal prosecutions, in which the issues likely to be far more significant are matters typically committed to the discretion of trial judges or fact-finders (and, as noted above, effectively insulated from interlocutory appellate review). In Schor, the statute at issue reserved most of the "essential attributes of judicial power" to the Article III district courts that would enforce CFTC orders. Here, by contrast, the MCA delegates the "essential attributes of judicial power" to trial courts staffed by non-Article III military judges. That's a far cry from what Justice O'Connor had in mind--and, if it were sufficient, would suggest that Article III appellate review is sufficient to justify all non-Article III federal adjudication. The Supreme Court has never come close to suggesting that this is the case, and for good reason. Appellate review is never enough even in the civil context; it surely isn't enough in criminal cases.
Back to Judge Henderson:
Second, the military commission has very limited jurisdiction under the 2006 MCA. It “deals only with a particularized area of law”—namely, the law of war. The 2006 MCA enumerates, in total, 30 war crimes, and only an “alien unlawful enemy combatant” is subject to military-commission trial. No one disputes that military commissions can—consistent with Article III—adjudicate expressly recognized international law-of-war offenses. An inchoate offense like conspiracy adds only a “narrow class of . . . claims . . . incident to the [military commission’s] primary, and unchallenged, adjudicative function.”
In one sense, of course, it's true that those MCA offenses that are not international war crimes (including inchoate conspiracy, "providing material support to terrorism," and "solicitation," among others), "deal only with a particularized area of law," and represent a "narrow class of . . . claims." But the notion that these non-war crimes are in fact "narrow" and are incident to the "primary, and unchallenged, adjudicative function" of the commissions (to wit, trying international war crimes) is laughable on its face. First, it's hard to think of criminal offenses that are substantively broader than inchoate conspiracy and "providing material support." Second, and more importanly, fully seven of the eight convictions obtained by the commissions to date have turned on these kinds of charges, and, in most of those cases (including Hamdan and al-Bahlul), the only charges the government even brought were for such non-international war crimes.
Indeed, to suggest that the "primary" function of the commissions has been to try international war crimes is to utterly ignore the ignominious history of this entire project--and the extent to which exactly one of the trials thus far has been based upon indisputable international war crimes. Contrast this with Schor, where the "primary" function of the non-Article III proceeding was to resolve the "public right"--the reparations claim against the commodities broker. If the military commissions were exercising jurisdiction only over domestic offenses necessarily ancillary to charged international offenses, then there might be more to this argument. But in fact, the whole constitutional problem in al Bahlul arises from the prosecution of domestic offenses without any charged international offenses--where the sole criminal charges are non-international war crimes.
At a more basic level, the idea that a congressional authorization to prosecute any non-citizen the government deems to be an enemy combatant for the rather un-specific offense of inchoate conspiracy is "narrow" (as compared to, for example, state-law counterclaims to administrative reparations proceedings filed against commodities brokers), presumably demands more support than merely Judge Henderson's ipse dixit. Thus, on "the origins and importance of the right to be adjudicated," it's hard to square Judge Henderson's analysis with Schor itself.
What about the third Schor factor?
Third, “the concerns that drove Congress to depart from the requirements of Article III” tilt in favor of the challenged provision’s constitutionality. The Congress chose the military commission over Article III court for one overriding reason: national security. Among the discussed concerns were the potential disclosure of highly classified information; the efficiency of military-commission proceedings; the military’s expertise in matters of national security; the inability to prosecute enemy combatants due to speedy-trial violations; the inadmissibility of certain forms of evidence; and, later, the risk of terrorist attacks on domestic courts.
As I said above, I think there's a bit more on the third Schor factor in support of military jurisdiction, although it's fascinating that Judge Henderson expressly justifies a departure from Article III on the ground that Article III proceedings might have gotten bogged down by those pesky procedural and substantive constitutional and sub-constitutional rights. (That's certainly not the kind of justification to which Justice O'Connor was referring in Schor.) Moreover, it's worth underscoring how hollow the "national security" justification rings. There's no record of classified information leaking out of post-9/11 civilian criminal trials; the last thing anyone could call the military commissions is "efficient"; the speedy trial issue turned out to be a red herring, per the Second Circuit's analysis in Ghailani; the current commission rules of evidence, at least on paper, are virtually indistiguishable from those that apply in Article III courts; and the concern of attacks on domestic courts were, well, overstated.
But even if one thinks Congress could reasonably have worried about these things back in 2006, what about the upshot of this reasoning, i.e., that Congress was intentionally subverting Article III?:
Finally, the system that the Congress has established— military-commission proceedings in the Executive Branch, appellate review in the Judicial Branch—“raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.” . . . In the 2006 MCA, the Congress has assigned conspiracy to the military for trial and sentencing and to the Judiciary for review “without appreciable expansion of its own power,” and while “retain[ing] for itself no powers of control or supervision." This is not the sort of legislation that raises separation-of-powers hackles.
Leaving aside the obvious rejoinder to the last sentence (But see Boumediene v. Bush, 553 U.S. 723 (2008)), there's a subtle but crucial flaw in Judge Henderson's analysis here: Her basic argument is that there's no Article III problem because Congress hasn't aggrandized the judicial power for itself. But neither Schor nor the rest of the Supreme Court's non-Article III jurisprudence is limited to legislative arrogation. Instead, the concern in all of those cases (as in various other areas of the Federal Courts canon) is with congressional arrogation of judicial power for the benefit of any other institution. That's why executive extrajudicial revision of judgments (as in Hayburn's Case) is just as problematic as legislative extrajudicial revision (as in Plaut). So construed, it's hard to see how the MCA doesn't arrogate judicial power in favor of the Executive Branch. Indeed, whether one supports the commissions or despises them, how could one say with a straight face that the Executive Branch has no more control over the proceedings than it would over criminal trials in the Article III courts? It may be that the extent to which the MCA takes power from the courts and gives it to the Executive is defensible, but to suggest that this is a non-starter is to turn Schor (if not the whole of the Court's non-Article III jurisprudence) on its head.
I still believe, as I argued in my Georgetown Law Review article and as I wrote on Sunday, that application of the Schor balancing test to assess the validity of non-Article III military adjudication is a major category error, and largely misses the deeper spirit of the Supreme Court's jurisprudence regarding the permissible scope of the departure from Article III in military cases. But on the merits of Schor, I just don't find Judge Henderson's application and analysis all that convincing. At most, one of the Schor factors cuts both ways, but the other two militate decisively in favor of Article III, as opposed to military, adjudication of domestic federal crimes. As Judge Rogers put it in her opinion,
The circumstances of Bahlul’s prosecution . . . could not be further from Schor. There, Congress added to an Article I tribunal otherwise within an established Article III exception the authority to adjudicate a closely intertwined common-law cause of action, only with the consent of the parties, without authority to issue final enforceable judgements, and with meaningful factual review on appeal. Here, in Bahlul’s case, Congress has created a standalone Article I tribunal to adjudicate his entire criminal case without his consent, with the ability to issue final enforceable judgments, and with almost no factual review on appeal.
Whatever one thinks of functionalism in general, or functional approaches to non-Article III adjudication, in particular, if it's permissible for Congress to allow sweepingly broad domestic offenses to be tried by military commissions in Bahlul's case, then the implications for Congress's power to intrude upon Article III going forward are, frankly, rather staggering. Perhaps there are more convincing functional grounds upon which to defend the power of military commissions to prosecute such domestic offenses; suffice it to say, I'm unconvinced that Judge Henderson's dissent provides them.