Military Commissions Loom Large at Supreme Court

Harry Graver
Tuesday, October 3, 2017, 11:28 AM

The Supreme Court’s October term 2017 may be shaping up to be the year that finally brings some answers to several enduring questions surrounding the military commissions. On Thursday, the court granted certiorari in three cases–Dalmazzi v. United States, consolidated with Cox v.

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The Supreme Court’s October term 2017 may be shaping up to be the year that finally brings some answers to several enduring questions surrounding the military commissions. On Thursday, the court granted certiorari in three cases–Dalmazzi v. United States, consolidated with Cox v. United States and Ortiz v. United States–that challenge, in part, the composition of the United States Court of Military Commission Review (CMCR), the intermediate appellate court between the commissions and the D.C. Circuit. These were among seven petitions pending on the court’s cert docket last week related to pending prosecutions (two of the remaining four filed relate to issues substantially similar to Dalmazzi, Cox, and Ortiz). The government has opposed granting cert in all of them.

This post describes the three consolidated cases slated to appear before the court and outlines the other possible issues raised by the two non-CMCR petitions: Bahlul v. United States and Nashiri v. Trump. (For additional analysis of these cases, see episode 35 of the National Security Law Podcast.)

Dalmazzi, Cox, and Ortiz

The three petitions that the court consolidated and granted on Thursday come from service members convicted by a court-martial and who appealed to an intermediary appellate court (such as the Air Force Court of Criminal Appeals). In each case, critically, at least one of the appellate military judges was concurrently serving on the CMCR. While the claims have different procedural backgrounds, they present similar issues. As a point of context, one of the two outstanding similar petitions–Abdirahman v. United States–has been distributed for the October 13 conference, while the other– Alexander v. United States–has not. (For a collection of relevant court documents for the granted cases, see here.)

The cases mostly concern an 1870 statute that generally prohibits active-duty military officers from holding “civil offices.” The issue is whether having active-duty military officers serve as judges on the CMCR violates this law. As to the statutory question, Steve Vladeck, who is counsel of record on all of these cases (and Abdirahman), provided a lay of the land.

In the military commissions context, there are two points to add to Professor Vladeck’s piece. First, counsel for Nashiri and Khalid Shaikh Mohammad have unsuccessfully raised similar arguments before (for a slightly fuller history of the below, see the government’s brief in opposition for Ortiz pgs. 3-5), which would be immediately reevaluated in light of any of these petitions succeeding on the merits. Second, the cases also raise new constitutional questions about the structure of the CMCR. If the court acted on those issues, it would reshape the CMCR for all military commission cases.

Previous Detainee Motions

In November 2014, counsel for Abd Al-Rahim Hussein Muhammed Al-Nashiri (the alleged mastermind behind the USS Cole bombing and appellant in one of the petitions below) petitioned for a writ of mandamus in the D.C. Circuit seeking the disqualification of the active-duty military members of the CMCR hearing his appeal. His petition argued, in part, that the judges were “principal officers” and, accordingly, must be presidentially appointed and Senate-confirmed to their positions on that court.

The Military Commissions Act (MCA) provides for two ways someone can become a judge on the CMCR: (i) The secretary of defense may “assign persons who are appellate military judges to be judges” on the CMCR, or (ii) The president may “appoint, by and with the advice and consent of the Senate, additional judges” who do not have to be military officers. Nashiri’s counsel argued that the judges then-serving under option one did so in violation of the Appointments Clause because they were principal officers. The D.C. Circuit held that the claim did not clear its standard for mandamus relief (see below). But it flagged that the issue could be resolved if the president simply appointed the CMCR’s military judges per the MCA’s other provided mechanism (and the government did so).

Nashiri’s counsel filed another motion soon after in the CMCR to disqualify the military judges on his panel on the grounds that their appointment violated 10 U.S.C. 973(b)(2)–the statute referenced above and at issue in the three granted petitions. The CMCR denied his motion, holding that (a) such service is “authorized by law” under the MCA, and (b) the position is not a “civil office.” The D.C. Circuit denied the writ of mandamus filed in response to this order.

In May 2017, Khalid Shaikh Mohammad’s counsel, on behalf of him and his four co-defendants, raised a similar motion in the CMCR to disqualify the military judges hearing his interlocutory appeal under the same statutory argument. The CMCR denied this motion too, emphasizing its view that the judgeship was not a “civil office” and that “military commissions are primarily a military function with a direct connection to the law of war.”

So far, four judges on the CMCR have had their position called into question for the above reasons. Should Dalmazzi prevail on its statutory claim, not only would the two decisions made in Nashiri and KSM’s cases seemingly be invalid, but it also would undermine the validity of any CMCR ruling made by a panel containing one of those four judges whose service, as it turns out, was in violation of federal law. What more, Dalmazzi also raises a new constitutional argument that, if accepted, would provide an alternative mechanism for detainees to challenge the structure of the CMCR.

The Constitutional Problem

The appellants (here, here, and here) also argue that the government’s interpretation of 973(b)(2) poses “significant constitutional problems” under both the Appointments Clause and Commander-in-Chief Clause. If a single individual can serve both as a judge on a service court of criminal appeals and as a CMCR judge (a principal officer, as the petitions argue), then a fundamental constitutional “incongruity” emerges. In particular, there is a situation where such an individual is “serving in a second position through which he is subordinate to other Executive Branch officers” and at the same time “sharing decisionmaking authority with inferior officers who may be well unduly influenced by his principal office.” This sort of system may very well “rise[] to the level of functional incompatibility that is prohibited by the Appointments Clause.”

This problem is potentially compounded by the Commander-in-Chief Clause. By statute, CMCR judges can only be removed for cause. But if CMCR judges can simultaneously be active-duty military officers (as the government maintains is permissible), then the president’s power to exercise control and direction over the military is potentially compromised, which would “raise[] constitutional concerns of the first order.”

In opposition to the petitions (here and here), the government contended that this constitutional rationale rested on a false premise. As outlined by the court of Appeals for the Armed Forces: The argument “presumes that [an officer’s] status as a principal officer on the USCMCR somehow carries over to the [court of criminal appeals], and invests him with authority or status not held by ordinary [court of criminal appeals] judges.” In short, there is no functional incompatibility because there is no reason that someone cannot be an inferior officer in one capacity and then be a principal officer in another. Ultimately, according to the government, the “petitioners cit[ed] no authority holding” a contrary position and the court should keep to its standard practice of not taking up “novel issue[s].”

Al Bahlul v. United States

Ali Hamza Ahmad Suliman al Bahlul was captured in Pakistan in December 2001 and brought to Guantanamo Bay in 2002. The government originally charged Bahlul before a military commission in 2004, and his case has been subjected to extensive legal processes (much of which has been covered here) since then. As a brief refresher, the procedural highlights are as follows:

  • February 2008: Bahlul is re-charged under the 2006 Military Commissions Act (“2006 MCA”) with conspiracy to commit war crimes, solicitation of others to commit war crimes, and providing material support for terrorism. Bahlul boycotted the proceedings and instructed his counsel not to present a defense. He was convicted on all charges in November 2008.
  • January 2010: Bahlul’s appellate counsel appeals his convictions to the CMCR, which affirms in September 2011.
  • 2012: Bahlul’s counsel appeals (in what is now referred to as “Bahlul I”) to the D.C. Circuit, contending, among other things, that his convictions violated: (i) Articles I and III of the Constitution, because he was accused of charges that needed to be before an Article III court; (ii) the Ex Post Facto Clause, because he was charged under a statute (the 2006 MCA) enacted after his capture; and (iii) the equal protection portion of the Due Process Clause, because the commissions themselves constituted a segregated form of justice in violation of the Fifth Amendment.
  • While this case was pending, a panel of the D.C. Circuit separately decided Hamdan v. United States (“Hamdan II”), holding that the 2006 MCA did not permit prosecution “for conduct committed before enactment of that Act unless the conduct was already prohibited under existing U.S. law as a war crime triable by military commission.” The government conceded that Bahlul’s convictions would need to be vacated under Hamdan II and accordingly appealed.
  • July 2014: The D.C. Circuit, sitting en banc (“Bahlul II”), overruled Hamdan II. In addressing Bahlul’s case, the court used plain error review because Bahlul did not raise a defense at trial and thus forfeited a number of arguments. It vacated Bahlul’s conviction for solicitation and material support. It then remanded the question of whether conspiracy can be charged in a military commission consistent with Articles I and Article III; the court determined it was not “plain” that conspiracy was “not already triable” at the time of Bahlul’s conduct.
  • June 2015: A divided panel of the D.C. Circuit (“Bahlul III”) considered the conspiracy charge under de novo review because the court viewed Bahlul’s challenge as a “structural” one that could not be forfeited. The court vacated the charge on the grounds that it violated Article III.
  • October 2016: The D.C. Circuit, again en banc (“Bahlul IV”), vacated the panel decision and upheld Bahlul’s conspiracy conviction. But no opinion received a majority (for a detailed summary, see here); the court was divided on the appropriate standard of review as well as whether Congress has the power under Article I to authorize the trial of conspiracy by military commissions

This year, counsel for Bahlul filed a petition for certiorari to the Supreme Court, raising the three issues described below. The government has opposed review of all of them.

The Conspiracy Charge

The first question presented, as Bahlul’s counsel words it, is: “May Congress vest these military commissions with federal courts’ jurisdiction over wholly domestic crimes?” This issue is the most significant one for the military commissions across the seven petitions and has been at the forefront of Bahlul’s previous appeals. As Judge Kavanaugh wrote in his Bahlul IV concurrence: “[This] 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.”

As some context, under Article III, criminal defendants usually have the right to be tried before a civilian court with a jury. There are, however, exceptions. In Ex Parte Quirin, the Supreme Court held that Congress had the “authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions” to try “offenses committed by enemy belligerents against the law of war.” What constitutes something “against the law of war” and that can acceptably be put before these Article I tribunals, though, is unclear: Everyone would agree that there are certain fundamental limits (for instance, Congress cannot place jaywalkers before military commissions) but where and how to draw the line is an open question. The issue raised by Bahlul’s case, essentially, is whether conspiracy falls into this exception contemplated by Quirin.

Bahlul’s counsel says no, describing conspiracy as a “wholly domestic crime.” Under its understanding of military commission jurisdiction, “against the law of war” means “against the international law of war.” Critically, in this case, the United States has conceded that conspiracy to commit terrorism is not an “offense under the law of war.” For Bahlul’s counsel, such a concession is fatal and the matter would end there.

As the petition acknowledges, not everyone sees it that way. In particular, in Bahlul IV, Judge Kavanaugh (joined by Judges Brown and Griffith) dismissed the notion that the commissions’ jurisdiction was fundamentally constrained by international law. He argued that Congress–through the Define & Punish Clause, Declare War Clause, and related powers–had independent authority to constitute commissions and make certain charges triable before them. The opinion recognized that there are certain limits to this power, but that “international law is not such a limit.” In order to figure out whether conspiracy fell within Quirin and was consistent with Article III, Judge Kavanagh turned, in large part, to history. He concluded that historical practice–including the “two most important commission precedents in U.S. history (Lincoln and Nazi conspirators, respectively)–confirmed conspiracy was triable by commission.

Bahlul’s petition rejects this argument on two grounds. First, political branch practice does not answer the separation-of-powers question at hand because it does not relate to the constitutional responsibilities of the judiciary. In other words, what the president and Congress say the role of the judiciary is in relation to their own powers should not be given significant weight. Second, even if such a pattern were instructive, Judge Kavanaugh failed to present the “firmly established historical practice” needed to “establish an exemption from Article III.”

In its brief in opposition, the government argued that Bahlul’s conspiracy argument “lacks merit and does not warrant further review.” First, principles of forfeiture make clear that Bahlul’s claims should be reviewed under a plain error standard (Bahlul’s counsel argues they should be reviewed de novo as structural constitutional challenges). Second, the government largely endorsed the view of Article III articulated by Judge Kavanaugh, emphasizing that the “U.S. Common Law of War” clearly supported commission jurisdiction over conspiracy. And third, the brief contended that Bahlul’s case would be a particularly poor vehicle for review of this issue because of the “availability of alternative grounds,” including plain error review.

Ex Post Facto Claim

Bahlul’s counsel next raises both statutory and constitutional ex post facto claims. Remember, Bahlul was convicted under the 2006 MCA, a statute passed five years after he was arrested in Pakistan and two years after he was first charged in 2004.

The statutory question is: Does the text of the 2006 MCA overcome the presumption against retroactivity to authorize prosecutions for conduct committed before its enactment? A statute must exhibit “clear congressional intent” to apply retroactively and, per Bahlul’s counsel, the 2006 MCA fails to do so. Accordingly, the petition urges the court to adopt the Hamdan II panel’s view that the statute was ambiguous over the view of the Hamdan II en banc opinion that the 2006 MCA “is unambiguous in its intent to authorize retroactive prosecution for the crimes enumerated in the statute–regardless of their pre-existing law-of-war status.” The government only uses a paragraph of its brief in opposition to endorse the latter view and assert “further review [of the statutory question] is unwarranted.”

The second and constitutional question is where the action appears to be: Assuming the 2006 MCA authorizes such prosecutions, is this kind of arrangement constitutional? Bahlul’s counsel emphasizes that before 2006, the only law conferring subject-matter jurisdiction on military commissions was the Uniform Code of Military Justice (10 USC §821), which vested them with jurisdiction over offenses under the “law of war.” Thus the petition alleges that its case presents a particularly pressing issue as to the permissible scope of “declaratory law.” In the 2006 MCA, Congress made a point that it was codifying existing law rather than creating new laws. The petition, however, argues that Congress did no such thing, instead “alter[ing] the definition of criminal conduct” under §821 in a manner that unconstitutionally “substitute[ed] its interpretation of pre-existing law for the judiciary’s.”

The government, in its opposition brief, maintains that “[p]etitioner cannot show any violation of the Ex Post Facto Clause, let alone a violation that amounts to plain error.” The 2006 MCA was simply the “codification” of a crime that “has been traditionally charged” in commissions and therefore “creates no ex post facto problem.” Moreover, conspiracy was already illegal under domestic law when Bahlul acted to conspire outside the United States to kill U.S. nationals (18 USC §2332), so the “fact that the 2006 MCA provides a different forum for adjudication does not implicate ex post facto concerns in this case.” Lastly, the government denied that lower courts had decided “any question” regarding declarative law or the meaning of “law of war” under §821.

Equal Protection Claim

Bahlul’s counsel also argues that by limiting military commissions’ personal jurisdiction to non-citizens, Congress has created a segregated justice system in violation of the Fifth Amendment. The petition rejects the government’s national security rationale for this setup, arguing that the rationale improperly requires “blanket deference” from the judiciary and does not justify the high costs of “invidious discrimination” caused by the commissions. Such a system lacks acceptable historical analogs (Bahlul cites the immigration law tribunals created by the Chinese Exclusion Acts and invalidated by the Supreme Court in Wong Wing), ignores the traditional oversight role the federal judiciary has played over military commissions (e.g. in Ex Parte Quirin), and fundamentally undermines due process.

The government dismisses this claim on the grounds that “Congress’s decision to limit military jurisdiction to alien unlawful enemy combatants” fulfilled a “vital national security interest in establishing a military forum in which to bring to justice foreign unlawful belligerents.” The commission structure thus “provides for a fundamentally fair proceeding without requiring that such aliens be admitted into the United States” and merits the court’s usual deference to the political branches in this sphere. The government also notes that “none of the multiple, lengthy opinions below agreed” with Bahlul’s position here.

Al-Nashiri v. Trump

Al-Nashiri is the alleged mastermind behind the bombings of the USS Cole in 2000, which killed 17 crewmembers, and the M/V Limburg, a French supertanker, in 2002. He was captured in 2002, held for a period of time in CIA “black sites” as part of the CIA’s Rendition Detention and Interrogation program, and ultimately charged before a military commission in 2011 for his role in the bombings. The government has not charged Nashiri with any involvement in the September 11 attacks.

The main issue with Nashiri’s prosecution is that the Military Commission Act (as amended in 2009) identifies 32 offenses “triable by military commission,” provided they were “committed in the context of and associated with hostilities.” But were any of the above bombings committed in the context of “hostilities”? Nashiri’s counsel say no: They peg the start of hostilities to operations in Yemen in September 2003, arguing that was the first time and place the president “extend[ed] the AUMF’s war-making authorities” as recognized in a War Powers Resolution report. If this date is correct, Nashiri would have been in custody for roughly a year before “hostilities” started and the commission would lack jurisdiction over him under the MCA.

Nashiri’s counsel has raised this claim since his initial hearings. They first moved to dismiss his charges on these grounds in 2012, but the presiding military judge denied the motion, finding that (i) the political branches had determined that hostilities commenced before September 11 (in part as explained in the language of the MCA), and (ii) the existence of hostilities during Nashiri’s specific conduct was a question for trial (essentially, how long before 9/11 did hostilities begin?). Nashiri filed an amended habeas petition in 2014 on the same grounds, but the D.C. district court refused to resolve the question. Instead, the court abstained under Schlesinger v. Councilman.

The applicability of Councilman is the central question raised in Nashiri’s cert petition, so it is worth pausing here to explain what it is (for a fuller discussion, see here). Councilman involved the court-martial of an army captain (Bruce R. Councilman) for allegedly possessing and selling marijuana. Councilman moved for an injunction in federal court on the grounds that the military lacked jurisdiction over his case. His claim eventually made its way to the Supreme Court, which held that “when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention.” In particular, Councilman sketches out two “comity considerations” that must be satisfied in order for the federal court to abstain: adequacy of the alternate system and importance of the interests protected by non-intervention. It also provides one overriding exception in the case of “extraordinary circumstances.”

On appeal, where Nashiri’s counsel also filed for a writ of mandamus, a divided panel of the D.C. Circuit affirmed the district court’s application of Councilman and also denied mandamus relief. Writing for the court, Judge Griffith agreed that Councilman abstention could be extended from courts-martial (its original application) to military commissions, since the government satisfied both comity considerations and there were no extraordinary circumstances. Nashiri’s counsel filed a petition for certiorari appealing these decisions to the Supreme Court. As with Bahlul, the government has opposed review of both issues.

Councilman Abstention

Nashiri’s counsel attack both the applicability and application of Councilman. The petition argues that extending Councilman–a case that simply barred “service-members from circumventing the military disciplinary system”–to the commissions would effectively remove the availability of habeas corpus “when a petitioner raises a substantial challenge to a military commission’s jurisdiction.” As such, Article III courts will only be able to review “the most fundamental precondition for [military commission] jurisdiction” (the commencement of hostilities) after conviction. Such a system, reason Nashiri’s counsel, undermines the Constitution’s structural safeguards and removes judicial oversight from situations where it is particularly needed (the petition calls the commissions a “novel and permanent system of rump criminal courts”) and has been historically present (e.g. in Ex Parte Quirin).

To this point, the petition contends that whatever the virtues of “inter-branch comity,” they cannot require such a shift of the role of the judiciary. If courts can extend Councilman outside of court-martial proceedings on broad comity considerations and “generic deference,” then it would logically stretch into “any quasi-judicial proceeding[] undertaken under military auspices writ large.” In practice, without the ability to seek Article III intervention, there would be a “presumptive military authority” to hold and try an individual until post-conviction review. The petition argues that this arrangement, at its core, is not only an expansion of Councilman, but also of abstention as a whole: “[E]ven the most established abstention doctrines do not apply when a tribunal is proceeding ‘ultra vires and thus lacks jurisdiction.’”

Even if Councilman does apply, however, Nashiri’s counsel contend that its “extraordinary circumstances” exception is certainly triggered here. In support, the petition cites the effects of “years of torture and humiliation” Nashiri allegedly endured at CIA black sites coupled with the psychological demands of a protracted capital trial.

The government, on the other hand, asserts that the D.C. Circuit properly “concluded that the MCA provides both adjudicatory procedures that are sufficient to protect the rights of those tried” and an “appropriate system of appellate review.” In light of this system, established by the political branches and revised by the judiciary, Councilman abstention is quite appropriate. Councilman doctrine was developed both to “avoid duplication of legal proceedings” as well as to recognize the primary role of the political branches in balancing the demands of military order with equitable justice. Through the MCA, Congress and two Presidents purposefully postponed review by Article III courts until all other appeals (including through the CMCR) are complete. Abstention here would not only respect that arrangement, consistent with Councilman, but also recognize the subject-matter versus personal jurisdiction divide that has informed other abstention doctrines.

The government also rejects the petitioner’s alternative argument that Councilman’s “extraordinary circumstances” exception applies, arguing that Nashiri has neither alleged the type of injuries “sufficient to discourage abstention” nor shown that the military commission process is “incapable of fairly and fully adjudicating the federal issues before it.”

Mandamus Relief

Nashiri’s petition also raises the claim that the D.C. Circuit adopts a “uniquely restrictive interpretation of the standard of review in mandamus cases.” This, in turn, undercuts the government’s position that the “exclusive avenue for interlocutory review of a military commission’s jurisdiction should be via petitions for writs of mandamus.

In short, the petition claims that the D.C. Circuit’s view of the third prong of Cheney v. United States District Court–that circuits should issue writs of mandamus only when the “right to issuance of the writ is ‘clear and indisputable’”–is unduly narrow and only satisfied when a petitioner’s claim is “unambiguously determined by controlling precedent.” Because cases arising from the military commissions are almost all ones of first impression, the argument goes, such a demanding standard effectively forecloses this option

The government rejects Nashiri’s characterization of the D.C. Circuit’s standard of review. The court’s decisions “do not reflect the categorical rule petitioner ascribes to them,” as evidenced by its recent decision disqualifying a judge on the CMCR. According to the opposition brief, the court was correct in finding that Nashiri’s claims had legitimate “open questions” and mandamus relief was thus inappropriate.


Overall, the Supreme Court’s October 2017 term may be a year full of precedent-setting decisions for the military commissions. The court has already granted certiorari one trio of cases that can fundamentally reshape the CMCR. And on October 6, the court will review the Bahlul and Nashiri petitions (docket here and here), two cases that go to the heart of what the commissions can do and how they can operate. As such, it is possible that the court will heed Judge Kavanaugh’s advice from Bahlul IV: “It is long past time for us to resolve the issue squarely and definitively.”

Harry Graver is a second-year student at Harvard Law School and a graduate of Yale University. He has previously interned in the Office of the Chief Prosecutor in the Office of Military Commissions.

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