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Ali Hamza Ahmad Suliman al Bahlul is a Yemeni citizen, currently held in Guantanamo Bay, who was convicted in a military commission under the 2006 Military Commissions Act for “inchoate conspiracy” to commit war crimes. After several rounds of judicial review, a D.C. Circuit panel in 2015 heard a challenge to his conviction on Article I and Article III grounds.
Bahlul argued that he must be tried before an Article III civilian court with a jury. Criminal defendants have that right as a general rule. But the Supreme Court in Ex Parte Quirin upheld military commissions convictions for offenses against the laws of war. Bahlul argued that this “law-of-war military commissions” Quirin exception covers only offenses against the international laws of war and that “conspiracy,” as a standalone offense, is not an offense under international law. The government conceded that international law does not recognize a standalone conspiracy offense but contended that military commissions may try anything that Congress defines as a “laws of war” offense, in addition to any offense that has historically been tried by military commission in the United States — what the government calls the “U.S. common law of war.” The government also argued that Bahlul forfeited his constitutional claims below by failing to raise them, and therefore that the D.C. Circuit should set aside Bahlul’s conviction only if there was plain error. Bahlul replied that de novo review was appropriate for structural Article III challenges like his.
The panel invalidated Bahlul’s conviction in June 2015 under de novo review on the grounds that Congress cannot encroach upon the Article III judicial power by authorizing military commissions to try unlawful enemy combatants for conspiracy. Commissions can try only international law of war offenses, and conspiracy is not an offense against international law (except in relation to genocide). (Lawfare summarized that decision here.)
Last fall, the D.C. Circuit granted rehearing en banc on two issues: (1) whether the panel should have exercised de novo or plain error review of Bahlul’s conviction, and (2) whether Congress could, under the Define and Punish Clause, make “conspiracy” an offense “triable before a law-of-war military commission” and, if so, “whether the exercise of such power transgresses Article III.”
Yesterday the D.C. Circuit sitting en banc overturned the panel decision and upheld Bahlul’s conviction in a short per curiam. But the six-judge majority relied on three different rationales. Four judges (Henderson, Brown, Griffith, and Kavanaugh) believed that Articles I and III permitted Congress to make conspiracy to commit war crimes punishable in a military commission. Judge Millett affirmed Bahlul’s conviction under plain error review only, without reaching whether Congress may make conspiracy an offense triable by military commission. And Judge Wilkins concluded that Bahlul was not convicted of a standalone conspiracy offense. Conspiracy is both “a stand-alone crime, and also a theory of liability” for joint criminal enterprises. Commissions might not be able to try Bahlul for the former (sometimes referred to as “inchoate conspiracy”), but Judge Wilkins believed the military commission really convicted him of substantive war crimes adopting a conspiracy theory of liability. Judges Rogers, Tatel, and Pillard jointly dissented, arguing that Bahlul’s prosecution and conviction by way of a commission violated Article III. Both Chief Judge Garland and Judge Srinivasan recused themselves.
Judge Henderson issued a short concurring opinion “incorporat[ing] by reference” her dissent in the Bahlul panel decision. In that dissent she had argued that the Define and Punish Clause, the Necessary and Proper Clause, and Congress’s “broader war powers” provided Article I authority for the prosecution, and that there was no Article III problem.
Kavanaugh (with Brown and Griffith)
Judge Kavanaugh, joined by Judges Brown and Griffith, authored the principal concurrence.
Standard of Review
Judge Kavanaugh agreed with the panel that de novo review, rather than plain error review, was appropriate even if Bahlul had forfeited his claim because Bahlul’s case was a “rare and extraordinarily important” one that “implicates an important part of the U.S. Government’s war strategy,” and because of the need for a clear answer to the merits issue. Kavanaugh, speaking only for himself, added five additional rationales: (1) Bahlul challenged the commission’s authority to charge him in the trial itself; (2) this structural issue “cannot be forfeited or waived”; (3) the Rules for Military Commission require de novo review; (4) “the Government has repeatedly forfeited any forfeiture argument”; and (5) even under plain error review, the court should uphold the conviction.
Turning to the merits, Judge Kavanaugh argued that Article I does not prevent Congress from establishing military commissions to try unlawful enemy combatants for the offense of conspiracy to commit war crimes, even if conspiracy is not a recognized offense under the international law of war. First, Congress’s war powers (specifically, the Declare War, Captures, and Necessary and Proper Clauses), rather than the Define and Punish Clause alone (which Judge Henderson had emphasized in her dissent below), give Congress broad authority to create military commissions. Among other things, according to both William Winthrop’s and Joseph Story’s treatises, commissions are a “traditional incident of war.” That provides a strong textual hook for the government’s position. None of the war powers clauses he mentions, unlike the Define and Punish Clause, “impose international law as a constraint on Congress’s authority to make offenses triable by military commission.” (Judge Kavanaugh also dismissed as “absurd” and lacking precedent the dissent’s argument that “the war powers clauses grant Congress authority to establish military commissions but not to specify which offenses may be tried by military commission.”)
Second, as a structural matter, the Constitution does not incorporate international law such that “Congress and the President [could] be subject to the dictates of the international community.” Third, the Supreme Court in Quirin upheld commissions’ convictions for espionage even though espionage is not “an offense under the international law of war.” The Quirin Court discussed international law authorities “in part because an offense’s status as an international law of war offense is sufficient but not necessary to make an offense triable by U.S. military commission.” (Judge Kavanaugh also dismissed the dissent’s suggestion that the Quirin Court mistakenly believed espionage to be an offense against the law of war as “lack[ing] foundation.” Later in the opinion, he also noted that the Court in Hamdan “expressly invited Congress to clarify the scope of the military commissions power,” which suggests this power is not limited by international law.)
Fourth, historical precedent suggested “that international law is not a constitutional constraint on Congress’s authority to make particular crimes triable by military commission.” Since 1776, the United States has authorized the use of military tribunals for trying espionage and aiding the enemy, neither of which are offenses against international law. Fifth and finally, “[t]he two most important military commission precedents in U.S. history—the trials of the Lincoln conspirators and the Nazi saboteurs [Quirin]—were trials for the offense of conspiracy.”
Judge Kavanaugh additionally argued that Bahlul’s conviction does not violate Article III because he has no constitutional right to a jury trial if no such right was available in military commissions as a matter of historical practice. The fact that Congress had historically authorized military commissions for conspiracy thus undercut Bahlul’s claim. Judge Kavanaugh also noted that, as a matter of precedent, Quirin never said that military commissions could try only offenses against the international law of war.
The concurrence acknowledged that there must be limits to military commissions’ authority, but was unsure where they were. Determinatively here, the historical record demonstrated that commissions for conspiracy are permissible.
Standard of Review
Judge Millett took a different approach and argued instead that the Court should have rejected Bahlul’s constitutional challenges under plain error review, as he is a criminal defendant who failed to raise his constitutional challenges before the military commission that convicted him. “Appellate courts are supposed to be courts of review, not first view.” Though acknowledging that the structural issue presented is important, Judge Millett argued that a plain error rule encourages defendants to air all their arguments early. Contra Judge Kavanaugh’s suggestion, Judge Millett did not think that Bahlul raised these constitutional challenges early on. Rather, he engaged in a “generic diatribe against the proceedings writ large.” For Judge Millett, that didn’t cut it.
Judge Millett also rejected Bahlul’s attempt to get around the forfeiture problem by framing his Article III claim as a challenge to the commission’s subject-matter jurisdiction. Framing the argument this way does not help, she concluded. “As long as the military commission ‘exercises its power under a presumptively valid federal statute, it acts within its subject-matter jurisdiction[.]’” (quoting United States v. Baucum).
Finally, she rejected Bahlul’s argument that his was a “structural Article III claim . . . not subject to plain-error review” under C.F.T.C. v. Schor (U.S. 1986). All Schor means, in her view, is that courts “have discretion to hear unpreserved Article III structural claims de novo in appropriate cases.” And the Court should not “exercise that discretion in this case for three reasons.” First, plain error review catches obvious mistakes. Second, in all previous cases where courts reviewed structural Article III issues, the parties had waived the issue below, not forfeited it. Third, Bahlul had no excuse for failing to raise this argument earlier.
As for Judge Kavanaugh’s solo suggestion that the government had forfeited its forfeiture argument, Judge Millett viewed it as clever but unavailing. “[S]tandards of review are not claims that parties can choose to make or not in a case,” and in any event the government did not forfeit the position. In addition, she determined that, contrary to Judge Kavanaugh’s opposite assertion, the “extraordinary importance” of this issue cuts against de novo review “when the Political Branches are jointly exercising their judgment in areas of national security, the conduct of war, and foreign relations.”
Bahlul argued that Congress exceeded the bounds of the Define and Punish Clause. Judge Millett rejected this argument under plain error review for five reasons. (Judge Millett seemed to accept that the Define and Punish Clause supplies the Article I basis for commissions, rather than the war powers Judge Kavanaugh identified.) First, it did not matter that, by the Government’s own concession, “what [Bahlul labels ‘inchoate conspiracy’” (that is, conspiracy as a “freestanding substantive crime,” rather than “a form of liability”) was not an offense under international law. The court can interpret international law for itself. Second, Bahlul’s conviction “rested on proof of more statutory elements than ordinary inchoate conspiracy requires.” The commission found that Bahlul “committed ten overt acts,” for instance. So even if Congress has limited power to try people for conspiracy as a “freestanding substantive crime,” “it is not plain that conspiracy to commit international war crimes as carefully defined in the 2006 Act falls exclusively within the Article III judicial power.”
Third, leaving aside the question of whether “inchoate conspiracy” could be tried by commission and continuing to push on the facts particular to Bahlul’s case, Judge Millett pointed out that “international law has recognized conspiracy as a stand-alone offense for certain illegal acts that bear a close resemblance to Bahlul’s charged conduct.” The Nuremberg Tribunal, for instance, prosecuted “conspiracy to wage aggressive war.” Bahlul’s offense seemed close enough to those international precedents to survive plain error review. Fourth, the Supreme Court has never “required slavish adherence to the precise contours of explicitly recognized international law as a precondition to Congress’s exercise of its power under the Define and Punish Clause.” And fifth, no “clear precedent” established that his conviction was unconstitutional.
Having disposed of the Article I challenge, Judge Millett next rejected Bahlul’s Article III claims under plain error review. He noted that Bahlul’s argument that the conviction impedes on Article III jurisdiction is merely the flipside of his Article I argument that Congress may not make freestanding conspiracy triable by military commission. Furthermore, Judge Millett argued that the government did not obviously violate Bahlul’s right to a jury because as a “non-citizen being held outside the United States,” he may not have any such right at all. Bahlul also raised First and Fifth Amendment claims that Judge Millett disposed of without engaging in much analysis. (Judges Kavanaugh and Wilkins also rejected these claims, and the dissent never mentioned them.)
Judge Wilkins primarily disagreed with Judge Millett’s standard of review analysis and also wrote separately to emphasize that there was “no constitutional violation under a de novo review standard” because “Bahlul was really convicted of an offense tantamount to substantive war crimes under a Pinkerton theory of liability.” If the question came down to whether conspiracy as a standalone offense could be prosecuted in a military commission, Judge Wilkins “would be inclined to agree with the dissent.”
According to Judge Wilkins, although Bahlul mounted a facial challenge to the MCA, the correct course was to treat the case as an as-applied challenge. Bahlul “was not convicted for inchoate conspiracy,” the definition of which Judge Wilkins explained in great detail in order to distinguish it from the acts for which Bahlul was actually convicted. To convict someone of conspiracy as a “stand-alone” crime, there is no need to show an overt act; the actus reus is just the agreement. By contrast, “the MCA’s statutory conspiracy requires a victim and a defendant’s own overt act.” Because Bahlul played a significant role in the 9/11 plot as well, for instance, Judge Wilkins argued that he could therefore be convicted under Pinkerton liability. That resolves any constitutional objection he might have because “joint criminal enterprise  is a recognized theory of vicarious liability” under international law.
The Dissent (Judges Rogers, Tatel, and Pillard)
In a sixty-seven-page joint dissent, Judges Rogers, Tatel, and Pillard took aim at the government’s expansive reading of congressional and executive authority to prosecute domestic crimes by military commission.
Standard of Review
The dissent agreed with Judge Kavanaugh’s solo assertion that the government forfeited its forfeiture argument by failing to raise it even once in four years of al Bahlul litigation. But even if the government had raised the argument, the dissent agreed with Judge Kavanaugh that the court should nevertheless exercise its discretion to consider the structural constitutional claim per Schor and its progeny. This isn’t for Bahlul’s benefit, the dissent reminded us. Rather, the military commissions themselves benefit from clear guidance on these difficult issues. (In a thinly-veiled reference to the Nashiri abstention issue, the dissent argued that “it would be unwise to put off final resolution of the commissions’ authority to preside over such charges for still more years to come.”) Critically, the court should exercise de novo review “for the judicial branch’s own benefit, not for al Bahlul’s”—for the structural separation of powers, not for the outcome in this case.
The dissenting judges argued that Congress unconstitutionally intruded on Article III when it defined conspiracy as a standalone offense triable by military commissions. Though they waded into the Define-and-Punish-Clause waters briefly, their focus was squarely on Article III. The dissent first surveyed the doctrinal landscape. Congress can vest the judicial power outside the judicial branch only in exceptional contexts: in limited administrative proceedings, for specialized non-Article III courts, in service-connected criminal courts martial, and—critically for our purposes—for military commissions in limited circumstances. Historically, there were three types of military commissions. First, for areas under martial law (e.g., Ex parte Milligan). Second, for areas temporarily occupied by the military. And third, as relevant here, Quirin recognized a carve-out during armed conflict for enemy belligerents who committed offenses against the laws of war.
Rejecting the government’s position, the dissent read the Quirin exception to Article III narrowly, noting that Quirin itself defined the “laws of war” as a “branch of international law.” And according to the dissent, Quirin’s progeny confirmed its reading. In both Johnson v. Eisentrager and In re Yamashita, the Supreme Court looked exclusively to international sources to determine whether the charged conduct violated the “laws of war” and thus fell into the narrow exception. Although those precedents remained silent as to whether military commissions could try crimes unrecognized in the international laws of war, the dissent cautioned restraint: “we, as a lower court, should be hesitant to stretch the exception recognized in those cases in the ways the government suggests,” particularly as the Hamdan plurality so recently described Quirin as “the high-water mark of military power to try enemy combatants,” and in the face of an atextual exception to clear structural constitutional commands.
The dissent thus turned to its central inquiry: if construing Quirin narrowly means a limited exception for crimes recognized in the international laws of war, is stand-alone conspiracy such an offense? The dissent highlighted that the government conceded it is not, and that the offense is mentioned neither in the Hague nor Geneva Conventions, has been repeatedly rejected by international tribunals, does not appear in the Rome Statute, and has been actively debated and rejected in the international community. Because stand-alone conspiracy is clearly unrecognized in the international laws of war, Congress may not grant the military commissions jurisdiction to try it.
The government’s specific arguments to the contrary failed to persuade the dissenters. First, the government argued that the crimes at issue in Quirin, spying and sabotage, were not offenses against the international laws of war. But the Quirin Court defined the “laws of war” as a subset of the “international laws of war” and clearly believed that spying and sabotage were in fact violations of the international laws of war; according to the dissent, that mistaken understanding is binding for purposes of making sense of the rest of the Supreme Court’s analysis.
Next, the government argued that Article III must be construed in reference to Article I, which grants Congress the authority to go beyond the bounds of international law in prescribing offenses triable by military commission. According to the dissent, however, the relevant precedents—Quirin, Yamashita, Hamdan—looked to congressional war powers to determine authority to establish military commissions but exclusively to the Define and Punish Clause for the scope of Congress’s authority to confer jurisdiction over particular offenses. Brushing off the plurality’s charge that the distinction is “absurd,” the dissent pointed out that the Supreme Court has drawn this precise distinction: “Thus, even were we to determine the scope of the Article III exception by reference to Congress’s Article I powers, it would still be constrained by international law.” Under the Define and Punish Clause, while it may be that Congress has the authority to “clarify somewhat murky areas of international law,” it “certainly has no power to make up that law entirely.” Here, Congress simply decreed stand-alone conspiracy to be part of the “laws of war.”
Finally, the dissent examined and rejected the government’s claim that historical practice supports its view of the limits of Article III. More specifically, the government argued that spying and aiding the enemy have long been triable in military commissions, reflecting an historical congressional understanding that military commission jurisdiction was not limited to the international laws of war. But again, just as in Quirin, there was no evidence that Congress knew these offenses were not part of the international laws of war, so its enactments could not be understood to limit the scope of Article III. Even if Congress did know, a narrow exception for spying and aiding the enemy did not necessarily reflect a belief in congressional power to make domestic offenses triable by military commission. Importantly to the dissent, Congress’s actual practice belied the conclusion: “Had Congress, over the last two hundred years, actually believed itself free to punish by military tribunal whatever wartime conduct it deemed necessary, it would be rather surprising that it codified these two offenses, both of which were subject to military trial at the time the Constitution was adopted.” Furthermore, the dissent rejected reliance on military commissions conspiracy precedent on several grounds. Reliance on, for instance, the Lincoln assassins’ case was “anachronistic” and reflected a failure to distinguish between conspiracy as a theory of liability and inchoate conspiracy as a stand-alone offense, and that case and others were distinguishable as mixed laws-of-war and martial-law commissions.
Rebutting the Concurrences
First, the dissent rejected the plurality and Judge Henderson’s attempt to glean significance from the fact that Hamdan invited Congress to clarify the scope of military commission jurisdiction without alluding to any constitutional problem with trying conspiracy offenses before commissions. This was but “a thin reed on which to rest” in light of Hamdan’s core procedural statutory holding. And in any event, the issue here simply wasn’t presented or argued in that case. Second, the dissent asserted that Judge Kavanaugh misinterpreted the work that international law is doing in the constitutional structure: the “international-law constraint that Quirin recognized and that we would apply here functions not as an independent constraint on the political branches’ powers to wage war, but rather as an essential demarcation between military and civilian jurisdiction.” International law resolved the apparent conflict between Article I’s Define and Punish Clause and Article III’s civilian judicial protections. And a formal line with reference to international law, the dissent argued, is especially appropriate where the political branches argue no military necessity.
The dissent took even bigger issue with Judges Millett and Wilkins’ readings of the record to support violations of the international laws of war that were never charged nor argued by the government. The dissent contended that any attempt to rest on a distinction between facial and as-applied challenges was flatly unavailing as Bahlul argued that “his conviction runs afoul of Article III because he was charged and prosecuted in a military commission for a crime that is not triable before such a tribunal.” More dangerous still, the dissent asserted, such an argument threatens individual constitutional due process notice protections, and moreover, because the MCA incorporates similar notice requirements, Judges Millett and Wilkins’ argument at minimum subverted congressional command.
What’s at Stake?
Although it may be tempting to shrug conspiracy off as a modest expansion on the jurisdiction of military commissions—“[a]fter all, the government is not seeking to prosecute cyber or drug crimes before military commissions”—Judges Rogers, Tatel, and Pillard cautioned an examination of the “pernicious” implications of the government’s claims for the separation of powers. To the dissenting judges, “the government articulates a breathtakingly expansive view of the political branches’ authority to subject non-service members to military trial and punishment,” cabined only by defining the target as an “‘enemy belligerent’ . . . engaged in proscribed conduct ‘in the context of and associated with hostilities.’” Those limits are hazy at best, as vividly illustrated by Nashiri’s prosecution for crimes preceding 9/11. Fundamentally, the dissent lamented the utter lack of a structural theory: “[I]f international law does not mark the boundaries between civilian and military jurisdiction, what does? On this, our colleagues are silent.”