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June 13, 2015
  Bahlul v. US
Headline: Divided DC Circuit Panel Vacates Guantanamo Detainee's Conspiracy Conviction

Area of Law: Article III Courts; Military Commissions Act

Issue(s) Presented: Whether Article III prevents Congress authorizing a law of war military commission to try the purely domestic crime of inchoate conspiracy.

Brief Summary: Pursuant to the Military Commissions Act of 2006, 10 U.S.C. ยงยง 948a et seq., a law of war military commission convened at Guantanamo Bay, Cuba found Ali Hamza Ahmad Suliman al Bahlul guilty of material support for terrorism, solicitation of others to commit war crimes, and inchoate conspiracy to commit war crimes. The U.S. Court of Appeals for the District of Columbia Circuit, sitting en banc, vacated Bahlul's convictions for material support and solicitation as violative of the Ex Post Facto Clause of the U.S. Constitution, and remanded the challenges to his conspiracy conviction to the original panel.

Bahlul contended that, in vesting military commissions with jurisdiction to try crimes that are not offenses under the international law of war, the Military Commissions Act exceeded Congress's authority under Article III of the Constitution by impermissibly authorizing executive branch tribunals to try purely domestic crimes. Reviewing the challenge de novo, a divided panel of the DC Circuit vacated the conviction.

As a threshold matter, the court held that Bahlul had not forfeited his Article III claim by failing to raise it at his trial before the military commission. Applying Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986), the court found that Bahlul's claim not only encompassed his individual right to a jury trial, which is subject to waiver, but also went "to the heart of the judiciary's status as a coordinate branch of government," implicating a structural interest in preventing Congress from infringing on the authority of Article III courts that was subject to neither waiver nor forfeiture.

Turning to the merits, the majority held that Bahlul's conviction for inchoate conspiracy by a law of war military commission violated the principle of separation of powers enshrined in Article III of the U.S. Constitution. The court started its analysis from the premise that, if a suit falls within the scope of the judicial power, responsibility for deciding it rests with an Article III court, with limited exceptions that included courts martial and military commissions. Because Bahlul had been tried by a law of war military commission, the majority considered whether conspiracy fell within the exception for that type of commission. Under Ex parte Quirin, 317 U.S. 1 (1942), the jurisdiction of law of war military tribunals is limited to "offenses against the law of war." The majority read Quirin and cases interpreting it to define the law of war with reference to international law norms and to exclude domestic offenses that are constitutionally triable by jury. The majority also cited the Supreme Court's decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), as reaffirming Quirin's principle that the law of war means only "the body of international law governing armed conflict."

Applying this framework, the majority concluded that the Article III exception underlying Quirin did not apply to conspiracy as a standalone offense. Conspiracy, as the government conceded, was not an offense under the international law of war and had been historically regarded as a serious crime implicating the right to trial by jury. The majority was unpersuaded by the government's argument that military commission jurisdiction had been extended to domestic offenses such as conspiracy, either in Quirin or by historical practice. The majority determined that statutes conferring military jurisdiction over spying and aiding the enemy did not demonstrate, as the government had argued, that domestic offenses came within the Article III exception. Rather, it viewed the statutes as evidence that such offenses had long been understood to be punishable under the international law of war. By contrast, the majority concluded there was little historical evidence to suggest that inchoate conspiracy, without more, had traditionally been regarded as an international law of war offense. Finally, the majority rejected the government's argument that Congress's Article I authority, stemming from either the war power or the Define and Punish Clause, allowed it to exceed the scope of the Article III exception.

Judge Tatel wrote separately to address differences between this opinion and the court's earlier en banc decision.

Judge Henderson dissented, arguing at length that Bahlul had waived or forfeited all challenges to his conviction, leaving them reviewable for plain error only, and that Congress had both Article I and Article III authority to grant jurisdiction over conspiracy to a military commission.

The full text of the opinion is available at

Significance: This opinion declares a significant portion of the Military Commissions Act unconstitutional.

Panel (if known): Henderson, Rogers, Tatel

Argument Date (if known): October 22, 2014

Date of Issued Opinion: June 12, 2015

Docket Number: 11-1324

Decided: Reversed

Case Alert Author: Ripple Weistling

Counsel (if known):

Author of Opinion: Rogers

Dissent by: Henderson

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 06/13/2015 10:13 AM     DC Circuit  

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