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By Lance J. Rogers
Nov. 19 — The question whether military tribunals have the constitutional authority to try domestic terrorism conspiracies or whether those cases must be prosecuted in Article III civilian courts may boil down to what standard of review the en banc U.S. Court of Appeals for the District of Columbia Circuit chooses to apply after it hears oral argument Dec. 1 in Bahlul v. United States, according to legal scholars who spoke with Bloomberg BNA.
“I have a hard time seeing how the government wins under de novo review and a hard time seeing how Bahlul wins under plain-error review,” said Steve Vladeck, of the American University Washington School of Law, Washington.
Ali Hamza Ahmad Suliman al Bahlul was convicted in 2008 of conspiracy to commit war crimes. Prosecutors alleged, among other things, that Bahlul served as Osama bin Laden's media secretary and produced propaganda and recruiting videos for al Qaeda.
In an en banc decision in 2014, the D.C. Circuit vacated Bahlul's material support and solicitation convictions but rejected Bahlul's ex post facto challenge to his conspiracy conviction under a plain-error standard of review, ruling that he forfeited those arguments by failing to raise them in the court below (95 CrL 514, 7/23/14).
On remand, a divided three-judge panel June 12 vacated the conspiracy conviction, ruling that the military tribunal that convicted him didn't have jurisdiction to hear what amounts to a purely domestic offense, as opposed to an international war crime, and further that the ex post facto argument wasn't forfeited (97 CrL 291, 6/17/15).
On Sept. 25, the full court vacated the panel opinion, saying it not only would rehear all the issues raised in the government petition but that it also wanted the parties to address the appropriate standard of review.
In an interview with Bloomberg BNA, Jennifer Daskal, an assistant law professor at American University, suggested that questions at oral argument dealing with standard of review will be critical.
“The standard of review is definitely one of the biggest issues because it is potentially outcome determinative,” Daskal said.
There is some chance that the full court will say it is going to apply a plain-error standard because Bahlul didn't raise the key challenge before the military commission, and that's a tough standard to meet, she said.
Daskal told Bloomberg BNA that she also expects questions from the en banc court on the substantive issue of “whether and to what extent military commissions are limited to trying international law offenses.” Bahlul is arguing that domestic conspiracy charges are beyond the jurisdictional reach of these commissions because the charges didn't involve international war crimes.
“It's hard for me to see that there are enough votes on the full court to say that the conspiracy charges can go forward, but it's impossible to predict,” Daskal said.
Clearly there are judges on the court who are dissatisfied with the panel opinion, she continued. “So if I had to guess, I could see them trying to narrow the panel holding somewhat,” she said.
Daskal is a former counsel to the assistant attorney general for national security at the Justice Department.
“One of the biggest things to watch in the oral argument will be not only how much time the court spends on the standard of review issue, but also whether there are any surprises insofar as which judges seem sympathetic to the government's position,” Vladeck said in an interview with Bloomberg BNA.
He added that court prognosticators would also do well to zero in on any questions asked by “the newer judges who weren't on the en banc court the last time around, like [Patricia A.] Millett, [Robert L.] Wilkins and [Cornelia T.L.] Pillard.”
In her dissent to the June panel decision, Judge Karen LeCraft Henderson assailed the majority's decision to grant de novo review and warned that the decision would hamstring the government's ability to bring terrorists to justice, Vladeck noted.
The two judges who were in the majority on the panel decision, Judges Judith W. Rogers and David S. Tatel, sided with Bahlul on the standard of review.
The remaining members on the 10-member en banc panel are Chief Judge Merrick B. Garland and Judges Janice Rogers Brown, Thomas B. Griffith and Brett M. Kavanaugh.
If a majority of the panel says Bahlul's Article III challenge should be reviewed using a “highly deferential standard,” that would allow the court “to avoid the Article III elephant in the room the same way it avoided the ex post facto problem in its July 2014 en banc decision,” Vladeck wrote in the online forum Just Security, which focuses on U.S. national security law and policy.
Vladeck filed an amicus curiae brief on behalf of the National Institute of Military Justice in support of Bahlul.
Garland, Rogers and Tatel were appointed by President Bill Clinton. Millet, Wilkins and Pillard were appointed by President Barack Obama. Brown, Griffith and Kavanaugh were appointed by President George W. Bush and Henderson was appointed by President George H.W. Bush.
Regardless of what the D.C. Circuit ultimately decides, Vladeck predicts the issue may eventually land in the U.S. Supreme Court.
If the court reaches and decides the main issue de novo, Vladeck said, “it will certainly get the Supreme Court's attention.”
Of course, if the circuit court upholds Bahlul's convictions under the plain-error standard, the case will have “zero precedential value” and it still won't be clear whether the line between war crimes and domestic offenses is a “critical line” or a “blurry line,” he said.
In any event, he said, “It wouldn't shock me, given the size and composition of the court, if we got some kind of fractured opinion where different judges create different alignments.”
Michel David Paradis, of the Office of the Chief Defense Counsel, Washington, will be arguing for Bahlul. Ian Heath Gershengorn, of the DOJ, Washington, will argue for the government. Each side has been allotted 30 minutes.
To contact the reporter on this story: Lance J. Rogers in Washington at email@example.com
To contact the editor responsible for this story: C. Reilly Larson at firstname.lastname@example.org
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