On Friday, the DC Circuit vacated al-Bahlul’s military commission conviction for conspiracy. There has been, and will be, much coverage of this decision, especially since the decision is a great candidate for a successful Supreme Court cert petition. Assuming that the federal government wants to appeal, which I can’t imagine it would not, the case would allow the Supreme Court to return to an issue — conspiracy as a substantive offense — that it has not addressed since Hamdan (which left many crucial questions unanswered due to the fractured nature of the majority opinion and Justice Kennedy’s unwillingness to take a position on the conspiracy issue). So Bahlul is ripe for SCOTUS consideration.
There are many aspects of the lengthy DC circuit opinion, and others have discussed the Article III issues in greater depth and detail, including Steve Vladeck, Peter Margulies, Steve Vladeck again, and others. Some are more interested in the constitutional question about what constraints exist on military commission jurisdiction as an exception to the usual constitutional requirements of an Article III court (a judge with life tenure, etc.).
But what interests me more is the government’s argument that although conspiracy is not a violation of the international law of war, there is still sufficient evidence that conspiracy is triable before military commissions as a matter of domestic “common law of war,” something akin to the precedent of military commissions. In the past I have wondered aloud about the details of this bizarre argument. So what I found most interesting in the DC Circuit’s opinion is that they do not push back as strongly as I would have liked on the government’s methodological framing of this argument, and instead push back on the paucity of evidence for its conclusion. Here is the specific paragraph that interests me:
The history of inchoate conspiracy being tried by law of war military tribunals is thin by comparison and equivocal at best. The government has identified only a handful of ambiguous examples, and none in which an inchoate conspiracy conviction was affirmed by the Judicial Branch. The examples are unpersuasive in themselves and insufficient to establish a longstanding historical practice (page 18).
The opinion then goes on to note the problematic precedent of the Lincoln assassination case, which was prosecuted before a military commission. Although conspiracy was one of the charges, the decision notes that the relationship between conspiracy and the completed offense was totally unclear in the case. (Whatever one thinks of the Lincoln assassination case as a precedent, it was clearly not a case of pure inchoate conspiracy, since the conspiracy was not frustrated and it succeeded in killing Lincoln).) Furthermore, while the Quirin conspirators during World War II were charged with conspiracy, the Supreme Court made no mention of the conspiracy charges when it upheld their convictions from the military commission, preferring instead to rest its analysis on the sabotage charge.
Finally, the majority notes that although Thomas’ dissent in Hamdan clearly relied on inchoate conspiracy as a part of the domestic common law of war, the majority contends that at most there were only three votes for this position at the time of Hamdan. To the extent that other justices referred to the common law of war in Hamdan (the Stevens opinion), it was used as a source of constraint, rather than expansion, for the jurisdiction of the military commissions.
(One problem I noted in reading the opinion is that on page 37 of the opinion the majority refers to JCE and aiding and abetting as “offenses against the law of war,” instead of referring to them as modes of liability or legal doctrines. Not sure why they would say that.)
Of course, I’ve left out a host of other constitutional issues that are important in this case, in part because what concerns me is the fate of conspiracy under the law of war, and how courts should understand the “law of war” as a body of law. Part of what makes this case so fascinating is that the government and the defense have radically different ideas of what the law of war is. Although the majority opinion in Bahlul does not explicitly resolve this question, it does say on multiple occasions that both the Quirin and Hamdan holdings were based on the international law of war.
Will the Supreme Court grant cert in this case? I am inclined to say yes, simply because hearing this case will help clarify the jurisdiction of military commissions in both a general and specific sense. The general element is that the Supreme Court will have the opportunity to clarify how and why military commissions operate as exceptions to the Article III requirement. The specific element is that the Supreme Court can clarify its position on the crime of conspiracy, which continues to be at issue in terrorism prosecutions.