New Court Ruling on the Use of Military Tribunals

[wpbinzel]

Yesterday, the nation's second highest court, the U.S. Court of Appeals for the D.C. Circuit, announced its decision in Al Bahlul v. United States. At issue was whether an enemy combatant could be tried for conspiracy by a military tribunal. In a 6 to 3 decision, the court ruled that the use of a military tribunal was Constitutional. Three of the judges in the majority looked back at history and relied heavily on trial of the Lincoln assassination conspirators. For that reason, I thought some excerpts from their opinion may be of interest.

PER CURIAM: Bahlul is a member of al Qaeda who assisted Osama bin Laden in planning the September 11, 2001, attacks on the United States. Bahlul was convicted by a U.S. military commission of the offense of conspiracy to commit war crimes, among other offenses. The U.S. Court of Military Commission Review affirmed Bahlul’s conviction.

In this en banc case, Bahlul argues that Articles I and III of the Constitution bar Congress from making conspiracy an offense triable by military commission, because conspiracy is not an offense under the international law of war.

We affirm the judgment of the U.S. Court of Military Commission Review upholding Bahlul’s conspiracy conviction. Six judges – Judges Henderson, Brown, Griffith, Kavanaugh, Millett, and Wilkins – have voted to affirm. Three judges – Judges Rogers, Tatel, and Pillard – dissent.

Of the six-judge majority, four judges (Judges Henderson, Brown, Griffith, and Kavanaugh) would affirm because they conclude that, consistent with Articles I and III of the Constitution, Congress may make conspiracy to commit war crimes an offense triable by military commission. They would uphold Bahlul’s conspiracy conviction on that basis.

KAVANAUGH, Circuit Judge, with whom Circuit Judges BROWN and GRIFFITH join, concurring:

Pursuant to congressional authorization, Presidents throughout U.S. history have employed military commissions to try enemy war criminals for conspiracy to commit war crimes. That history includes the two most significant U.S. military commission trials: the 1865 military commission trial of the Confederate conspirators who plotted to kill President Lincoln and the 1942 military commission trial of the Nazi conspirators who secretly entered the United States during World War II and planned to attack U.S. infrastructure and military facilities.

In ‎the ‎wake ‎of ‎al ‎Qaeda’s ‎attacks ‎on‎ the ‎United‎ States ‎on‎ September 11, 2001, Congress has twice passed laws (signed by President Bush in 2006 and President Obama in 2009) expressly reaffirming that military commissions may try unlawful enemy combatants for conspiracy to commit war crimes. Pursuant to those express congressional authorizations, President Bush and later President Obama have employed military commissions to try alleged al Qaeda war criminals for the offense of conspiracy to commit war crimes. Indeed, Khalid Sheikh Mohammed, one of the alleged masterminds of the September 11th attacks, faces a conspiracy charge in his pending military commission trial. Several other al Qaeda members likewise have been charged with conspiracy before U.S. military commissions.

Bahlul is an al Qaeda member who worked closely with Osama‎ bin‎ Laden‎ in‎ plotting‎ al‎ Qaeda’s‎ September‎ 11th‎ attacks on the United States. In December 2001, Bahlul was captured in Pakistan. In 2008, he was tried and convicted before a U.S. military commission of conspiracy to commit war crimes. Citing Article I and Article III of the Constitution, Bahlul argues that Congress may establish military commissions only for offenses under the international law of war. Bahlul further argues (and the Government concedes) that conspiracy is not an offense under the international law of war. Therefore, Bahlul contends that he may not be tried for conspiracy before a U.S. military commission.

On‎ its ‎face, ‎Bahlul’s‎ argument ‎is ‎extraordinary. ‎It ‎would‎ incorporate international law into the U.S. Constitution as a judicially enforceable constraint on Congress and the President. As a matter of U.S. constitutional law, the wartime decisions of Congress and the President to try unlawful enemy combatants before military commissions would be subject to the dictates of foreign nations and the international community, as embodied in international law.

The Government responds that, under the Constitution, Congress may establish military commissions to try, at a minimum, (i) international law of war offenses and (ii) offenses that are not international law of war offenses but have historically been tried by U.S military commissions. As the Government points out, conspiracy has historically been tried by U.S. military commissions.

This case therefore raises one central legal question: Under the U.S. Constitution, may Congress establish military commissions to try unlawful enemy combatants for the offense of conspiracy to commit war crimes, even if conspiracy is not an offense under the international law of war? The answer is yes. We know that from the text and original understanding of the Constitution; the structure of the Constitution; landmark Supreme Court precedent; longstanding congressional practice, as reflected in venerable and contemporary federal statutes; and deeply rooted Executive Branch practice, from the 1800s to the present.

. . . .

Fifth, in addition to the historical practice in Congress, the historical practice in the Executive Branch demonstrates that international law is not a constraint on which offenses may be tried by military commissions. Indeed, perhaps the most telling factor when considering this constitutional question is the deeply rooted history of U.S. military commission trials of the offense of conspiracy, which is not and has never been an offense under the international law of war. (“In‎ separation-of-powers cases this Court has often put significant weight‎ upon‎ historical‎ practice.”)‎ Noel Canning, 134 S. Ct. at 2560, slip op. at 7 (“[L]ong standing practice of the government can inform our determination‎ of ‎what ‎the ‎law‎ is.”)‎

The two most important military commission precedents in U.S. history – the trials of the Lincoln conspirators and the Nazi saboteurs – were trials for the offense of conspiracy.

Consider the trial of the Lincoln conspirators. After seeking the advice of the Attorney General, President Andrew Johnson decided to try the Lincoln conspirators by military commission rather than by criminal trial in civilian court. See Military Commissions, 11 Op. Attorney Gen. 297, 298 (1865). The Lincoln conspirators were expressly charged with and convicted of conspiracy – in that case, conspiracy to violate the law of war by killing the President and Commander in Chief of the Union Army, Abraham Lincoln. Indeed, conspiracy was the only offense charged against them. After an extensive multi-week trial that gripped the Nation and after vigorous argument about the facts and the commission’s‎ jurisdiction,‎ numerous‎ conspirators‎ were‎ convicted of conspiracy.

The joint dissent tries to cast doubt on whether the Lincoln conspirators were actually tried for conspiracy. There is no doubt. Consider what a contemporary court said in response to a habeas petition filed by three of the Lincoln conspirators:‎ ‎ “[T]he‎ prisoners‎ are‎ guilty‎ of‎ the‎ charge‎ on‎ which they were convicted – of a conspiracy to commit the military crime which one of their number did commit, and some‎ of ‎them ‎of ‎more ‎or ‎less ‎participation.” ‎‎Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868). Indeed, in the prior en banc decision in this case, our Court (joined by one of the judges who joins the joint dissent today) described the Lincoln case as‎ a‎ trial‎ for‎ conspiracy‎ and‎ stated‎ that‎ “the‎ sole‎ offense‎ alleged ‎was ‎conspiracy.” ‎Al Bahlul v. United States, 767 F.3d 1, 25 (D.C. Cir. 2014) (en banc). Our en banc Court explained‎ that ‎the ‎Lincoln‎ case‎ was ‎a‎ “particularly‎ significant‎ precedent”‎ and‎ a‎ “high-profile example of a conspiracy charge ‎tried ‎by‎ a‎ military ‎commission.” ‎Id.; see also Al Bahlul v. United States, 792 F.3d 1, 59-61 (D.C. Cir. 2015) (Henderson, J., dissenting).

Put simply, the most well-known and important U.S. military commissions in American history tried and convicted the defendants of conspiracy. That history matters. And that history is directly on point here because conspiracy is not an international law of war offense and because conspiracy is the precise offense that Bahlul was charged with committing.

In response to all of this, the joint dissent says that there is‎ no‎ “robust ‎history.”‎ Dissenting‎ Op.‎ at ‎37. ‎‎But ‎to‎ reiterate,‎ the two most important military commission trials in U.S. history were trials for conspiracy, which is not an international law of war offense. From the beginning of the Nation, Congress and the President have gone well beyond international law when enacting legislation making offenses triable by military commission. To be sure, military commissions were not employed by the United States during the Korean War, the Vietnam War, or the Persian Gulf War. See Hamdan v. Rumsfeld, 548 U.S. 557, 597 (2006) (plurality opinion) ‎(“The ‎last‎ time‎ the‎ U.S. ‎Armed ‎Forces ‎used‎ the‎ law-of-war military commission was‎ during ‎World ‎War‎ II.”). So those wars do not supply us with any additional examples of military commission trials, and thus do not tell us anything one way or the other about trying conspiracy or other non-international-law offenses before military commissions.

But in the two most significant U.S. wars of the last 200 years – the Civil War and World War II – as well as in the current war against al Qaeda and its associated forces, the U.S. has employed military commissions. And the most important military commission trials during those wars were trials for conspiracy, which is not an international law of war offense. That historical and contemporary practice cannot be airbrushed out of the picture. Prosecuting conspiracy and other non-international-law-of-war offenses is not at the periphery of U.S military commission history and practice.

Prosecuting conspiracy and other non-international-law-of war offenses lies at the core of U.S. military commission history and practice. As the Supreme Court cautioned in Noel Canning, we must‎ be‎ “reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have‎ believed‎ existed‎ and‎ have‎ exercised‎ for‎ so ‎long.” ‎Noel Canning, 134 S. Ct. at 2573. Moreover, the Supreme Court has explained that historical ‎practice‎ constitutes‎ “an ‎important‎ interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began ‎after ‎the‎ founding ‎era.” ‎Id. at 2560.


(The full opinion and dissent may be found at: https://www.cadc.uscourts.gov/internet/o...641851.pdf )

[John Fazio]

WP:

Thanks for this well-reasoned opinion. For what it is worth, I concur in the judgment of the majority. Let right be done!

John