Guest Post: The D.C. Circuit’s En Banc Ruling in Al Bahlul: Legal Innovation, Tradition, and America’s Domestic Common Law of War

[Jonathan Hafetz is Associate Professor of Law at Seton Hall Law School.  He has represented several Guantanamo detainees and has filed amicus briefs in previous legal challenges to military commissions.]

On July 14, the en banc U.S. Court of Appeals for the D.C. Circuit issued its long-awaited (and deeply fractured) opinion in Al Bahlul v. United States (.pdf), addressing the scope of military commission jurisdiction over offenses—material support for terrorism, solicitation, and conspiracy—that are not crimes under international law.  In a nutshell, the D.C. Circuit vacated Bahlul’s conviction for material support and solicitation, but affirmed his conviction for conspiracy against an ex post facto challenge.  While the ruling takes material support and solicitation off the table for commission prosecutions (at least for prosecutions of current Guantanamo detainees), it does not resolve the viability of charging conspiracy as a stand-alone offense because the en banc holding is based on the application of plain error review to Bahlul’s case (due to its conclusion that Bahlul failed to preserve his ex post facto challenge below).  The decision thus leaves open the fate of conspiracy under de novo review.  By implication, it also leaves open the viability of the U.S. government’s domestic war crimes theory not only with respect to other commission cases charging conspiracy (including the ongoing prosecution of the 9/11 defendants), but also with respect to Bahlul’s other legal challenges to his conspiracy conviction, which the en banc court remanded to the original D.C. Circuit panel.

This post will examine the multiple opinions in Bahlul addressing the U.S. government’s domestic war crimes theory, which posits that the Military Commissions Act of 2006 (2006 MCA) retroactively authorizes, and that the Constitution allows, the prosecution by military commission of conduct that is not a crime under the international law of war.  (For excellent summaries of the Bahlul decision, see posts at Just Security by Steve Vladeck here and by Steve and Marty Lederman here).  The theory’s viability is central to the retroactivity arguments addressed by the en banc court as well as to the additional arguments under Article I and Article III that will be considered on remand.

The Separate Opinions on Domestic War Crimes

Four separate opinions from the seven judges in Bahlul engage with the U.S. government’s domestic war crimes theory.   Writing for the majority and applying plain error review, Judge Henderson overruled the D.C. Circuit’s prior decision in Hamdan v. United States (Hamdan II), which held that the 2006 MCA does not authorize prosecution for pre-MCA conduct that did constitute an international war crime at the time.  As to Bahlul’s ex post facto challenge, Henderson(again applying plain error review) concluded that the relevant statute in effect at the time of Bahlul’s conduct—section 821 of the Uniform Code of Military Justice —did not obviously limit commission jurisdiction to international law-of-war violations; and that it was not obvious that conspiracy was not traditionally triable by a law-of-war commission under section 821.   Hardly a ringing endorsement of the government’s domestic war crimes theory, but sufficient to resolve Bahlul’s case on plain error review.   Judges Tatel, Garland, and Griffith joined Henderson’s opinion.  (Henderson also wrote a separate concurrence addressing the application of the Ex Post Facto Clause to Guantanamo; her view, shared only by one other judge on the court, was the clause would not have applied but for the government’s concession that it did).

In her opinion, Judge Rogers, the only judge who voted to vacate Bahlul’s conspiracy conviction, concluded that military commissions could not properly exercise jurisdiction over a separate body of domestic law-of-war offenses that were not recognized as crimes under international law.  Rogers concluded that the 2006 MCA did not retroactively authorize punishment over non-international law-of-war violations, such as conspiracy, and, alternatively, that if the statute had done so it would violate the Constitution’s Ex Post Facto Clause.  Rogers emphasized the importance of maintaining an international-law-based limitation on military commission jurisdiction in avoiding erosion of the constitutional guarantee of an Article III criminal trial.

Like Rogers, Judge Brown would have reviewed Bahlul’s conviction under a de novo standard.  Brown, however, said the conspiracy conviction should be affirmed based on a tradition of prosecuting non-international law offenses in military commissions.  Brown, moreover, would have reached the issue of Congress’ power under Article I’s Define and Punish Clause to prosecute such offenses in military commissions (an issue the en banc court remanded to the original panel).  Brown not only described international law as a “flexible concept,” but also argued that the U.S. should have latitude to mold international law to serve its national interests.  As long as conspiracy had a rough analogue in international law, Brown reasoned, that would satisfy Article I concerns, and courts should defer to congressional judgments on the exercise of its Define and Punish authority.  Brown concluded that conspiracy had such an analogue based on international law’s recognition of the stand-alone offense of conspiracy for genocide and aggressive war and the use of conspiracy as a mode of liability for all international law of war offenses.

Judge Kavanaugh, who likewise would have applied de novo review, said the government could prosecute in military commissions offenses traditionally triable there.   Like Brown, Kavanaugh endorsed the notion of a separate body of domestic law-of-war crimes subject to prosecution by military commission.  He also addressed the lurking Article III issue (which the majority remanded to the panel), finding that the exception recognized in Ex parte Quirin to the Constitution’s guarantee of an Article III criminal trial swept more broadly than violations of the international law of war.

Some Implications for Domestic War Crimes and Military Commissions

Because the majority decided Bahlul’s ex post facto challenge on plain error review, its holding will be of limited precedential value. (Indeed, the decision does not resolve all the issues surrounding the domestic common law of war even in Bahlul’s case).  In that regard, the decision reflects another example of judicial minimalism in war on terrorism cases.  Nevertheless, the various opinions, particularly those by Rogers and Brown/Kavanaugh, express sharply different visions of the role of military commissions and the meaning of domestic war crimes.  Several implications of those opinions are discussed below.

First, the opinions reveal a split over vicarious liability for war crimes. Charging conspiracy as a stand-alone offense does not require prosecutors prove a completed war crime or the defendant’s participation in its commission.  Inchoate conspiracy thus sweeps more broadly than theories of joint criminal enterprise liability adopted by international tribunals.  It significantly expands the scope of war crimes liability and undermines the principle in international criminal law that guilt is personal.   Further, while the D.C. Circuit unanimously rejected retroactive prosecution for material support for terrorism and solicitation, Brown and Kavanaugh’s opinions could potentially allow for prosecution of those offenses for conduct that post-dates the 2006 MCA.  While future commission prosecutions for material support may seem unlikely now given federal courts’ repeated success in prosecuting that offense, such prosecutions would effectively make organizational membership a law-of-war offense.

The Brown/Kavanaugh opinions, however, are unlikely to have much (if any) impact on international criminal law since they do not purport to challenge prevailing international definitions of war crimes so much as affirm the U.S. Congress’s wide latitude to interpret them.  Indeed, since U.S. criminal law already provides for broad inchoate liability—and those laws now reach extraterritorially—the main question for the U.S. is not whether terrorist fighters can be treated as unprivileged belligerents and prosecuted, but where those prosecutions are to occur.  The central battle between Rogers and Brown/Kavanaugh is thus less about the definition of war crimes per se than about the permissibility of using specialized (in this case, military) tribunals to prosecute terrorism suspects outside the regular criminal justice system.

Second, the interplay between international law and domestic tradition is a central issue dividing Rogers and Brown/Kavanaugh.  Both Brown and Kavanaugh resist the constraints they see international law as imposing on the United States.  Both instead view the U.S. as leading other nations in the fight against terrorism by pressing the bounds of international law and militarizing the prosecution of terrorism suspects through a more expansive conception of war crimes.  “Terrorism may be the global security challenge of the 21stCentury, just like aggressive war was in the early 20th Century and genocide was in the half century following World War II,” Brown explains.  To be a leader in the international community, she reasons, the U.S. must not be bound—at least not in any strict sense—by international law.  Indeed, Brown suggests that Congress should have wide latitude to create military commissions to prosecute terrorism even outside armed conflict—a clear signal of her views on the pending prosecution of Abd al-Rahim al-Nashiri for his role in 2000 attack on the USS Cole (i.e., before the 9/11 attacks and the armed conflict with al Qaeda).

This notion of the U.S. leading the international community by chipping away at international definitions of criminality is not the only paradox in Brown and Kavanaugh’s opinions.  Both embrace what they identify as a distinct American tradition of prosecuting law-of-war offenses in military commissions, citing a handful of precedents from the Civil War and World War II.  The meaning of these precedents is hotly contested.  (David Glazier, among others, has detailed the flaws in the historical analysis on which the government’s theory of domestic war crimes rests).    But in any event, this tradition, such as it is, pales in comparison to the much stronger tradition of prosecuting terrorism cases in Article III courts.

By providing a line circumscribing military commission jurisdiction, international law reinforces this latter tradition.  Brown and Kavanaugh reach their respective conclusions only by reading Quirin too broadly and disregarding the strong presumption in favor of civilian jurisdiction articulated in Ex parte Milligan and its progeny.  They caution against allowing international law to displace a domestic practice of prosecuting law of war offenses in military commissions, but, in fact, they seize on the notion of war crimes—a concept itself grounded in international law—to weaken the much deeper domestic tradition of civilian court prosecution.  When one starts with the domestic tradition of Article III prosecutions—and the conception of military commissions as exceptional departures from it (as Rogers does)—international law looks very different.

Third, the opinions underscore how judges’ approach to war can vary based on their perceived temporal relationship to the conflict.  When the Supreme Court upheld the military commission prosecution of the German saboteurs in Quirin, the Nazi threat was at its apex; by contrast, when the Court invalidated the conviction of a (violent) Confederate sympathizer in Milligan,the Civil War had concluded.   For Brown/Kavanaugh, it might as well be 1942 insofar as the war on terrorism is concerned.   But Rogers—and, more importantly, possibly also some members of the five-judge majority—may situate the case closer to war’s end, and thus to the conclusion of exceptional measures like military commissions.  While the majority affirmed Bahlul’s conspiracy conviction against an ex post facto challenge, its application of plain error review leaves open the possibility of circumscribing commission jurisdiction in the future, whether on remand in Bahlul or in the other pending commission cases (at least one of which—the prosecution of the 9/11 defendants—alleges actual war crimes).   It is uncertain how the domestic common law theory will fare in the coming rounds.  But Bahlul leaves room for courts to avoid expansions of military jurisdiction going forward and to cabin commission prosecutions to a handful of legacy cases.