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al Bahlul and the Future of “Domestic Law-of-War Offenses” in Military Commissions

As Steve wrote on Monday, the long-awaited en banc decision by the U.S. Court of Appeals for the D.C. Circuit in al Bahlul v. United States leaves unanswered many of the questions that were before the court—questions that are important not only in al-Bahlul’s own case but also, and more significantly, for military commission cases going forward.  This is hardly an ideal state of affairs, given that Congress codified the offense of “conspiracy” in the Military Commissions Act eight years ago; that al Bahlul was first charged in a military commission a decade ago; and that we are now approaching the thirteenth anniversary of the attacks of September 11.

Perhaps the anticlimax is for the best, however:  It is possible, for instance, that the decision reflects a compromise by an en banc court of seven judges who were evenly or closely divided on the merits—judges fully aware that the next time the full court confronts these issues, they will likely be joined by three or four new colleagues.

Moreover, in terms of military commissions practice, it’s not at all clear just how much turns on the answers to the questions that al Bahlul leaves unresolved.

For one thing, the court did answer the question with the broadest practical impact—it unanimously held that it is unconstitutional for military commissions to try the offense of “providing material support to terrorism” for conduct occurring before the MCA’s enactment in 2006.  That holding will likely affect whether certain Guantánamo detainees are tried before military commissions at all.  (The court also unanimously held that it would be unconstitutional to bring charges for pre-2006 “solicitation” to commit violations of the law of war.)

To be sure, the court did not decide whether it would be constitutional to bring material support charges in military commissions for conduct occurring after the MCA’s enactment in 2006.  But it’s very unlikely that this or any subsequent Administration would be inclined to prosecute post-MCA material support cases in military commissions, since such cases can now readily be prosecuted in Article III courts.

The other question most everyone thought or hoped the al Bahlul court would answer is whether it is constitutional to prosecute detainees in commissions for any conduct, occurring before or after 2006, that does not violate the international laws of war, including not only material support for terrorism, but also certain forms of inchoate conspiracy, and “unprivileged belligerency.”  We do not know, however, to what extent the Chief Prosecutor would be inclined to swear such charges in any future cases, or whether the Convening Authority would refer such charges, even if it were constitutional to do so.  Therefore even this question is of uncertain practical importance.

More importantly, we think that the court’s decision yesterday, although it did not resolve the constitutional question about commission charges for non-LOW offenses, ought to give the prosecutor and the Convening Authority significant reason not to swear and refer such charges—or, at a minimum, not to prosecute any cases that depend significantly on such charges.  Below the fold, we explain why.

I.  What the en banc court actually decided in al Bahlul

The major unresolved issue in al Bahlul was whether the government could charge the defendant in a military commission with a “stand-alone” conspiracy charge—that is, a charge that al Bahlul agreed to commit violations of the laws of war that does not require any proof that such violations actually occurred.  The government acknowledged that such an inchoate agreement is not a violation of the international laws of war, but argued that al Bahlul could nevertheless be tried for it in a military commission because such a conspiracy was an established offense under the so-called U.S. “domestic common law of war,” i.e., that it historically had been—and thus still can be—tried in military commissions.  al Bahlul argued in response that there was no such thing as a “domestic common law of war” conspiracy offense that had been established at the time of his alleged conduct, and that the Ex Post Facto Clause of Article I therefore prohibits a military commission trial for conduct, such as his, that predated enactment of the 2006 Military Commissions Act (which formally codified inchoate “conspiracy” as a stand-alone offense).

Five of the seven judges (all but Judges Henderson and Brown) concluded that the Ex Post Facto Clause does protect Guantánamo detainees.  Even so, the court did not decide whether or not al Bahlul’s conspiracy prosecution actually violated the Ex Post Facto Clause.  Instead, the majority concluded that, because al Bahlul had allegedly forfeited that argument in the trial court, the court of appeals was required to overturn his conviction on ex post facto grounds only if both (1) it would be “plain error” to reject the government’s argument; and (2) such error seriously affected the fairness, integrity, or public reputation of al Bahlul’s trial.  The court concluded that Bahlul’s Ex Post Facto Clause challenge did not satisfy this stringent test for two independent reasons:

First, the al Bahlul majority invoked an argument that the government had raised only in passing:  Judge Henderson concluded that “uncontroverted” and “overwhelming” evidence introduced in al Bahlul’s trial would have supported his conviction in an Article III court for a longstanding offense in the federal criminal code, 18 U.S.C. § 2332(b), which makes it unlawful to conspire outside the United States to kill a U.S. national.*  al Bahlul thus was on notice, according to the court, that he could be convicted in an Article III court for having violated § 2332(b).  The court then reasoned that it is “not a plain ex post facto violation to transfer jurisdiction over a crime from an Article III court to a military commission because such a transfer does not have anything to do with the definition of the crime, the defenses or the punishment.”

Second, the court concluded that it was “not obvious” that a statute on the books at the time of al Bahlul’s conduct, 10 U.S.C. § 821, did not already make a conspiracy of the sort in al Bahlul triable by law-of-war military commissions.  Section 821 provides that certain statutory provisions conferring jurisdiction upon courts-martial “do not deprive military commissions . . . of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions . . . .”  The court of appeals reasoned that, in light of three principal historical precedents—the conspiracy convictions associated with the Lincoln assassination in 1865, the conspiracy conviction of German saboteurs in 1942, and the conspiracy conviction of William Colepaugh and Erich Gimpel in 1945—it is at least arguable that § 821, which Congress enacted in 1916 and recodified in 1950, conferred jurisdiction on military commissions to try “conspiracy” offenses under the “U.S. common law of war,” even in circumstances where the conspiracy did not violate the international law of war.  And if that were so, the court reasoned, then it is also arguable that § 821 would have afforded al Bahlul sufficient notice to withstand any ex post facto challenge.

II.  Why it would not be wise for the prosecution to go forward with commission cases that depend upon “domestic law of war” offenses

Notwithstanding the al Bahlul majority’s rejection of the defendant’s ex post facto argument, there are two major reasons why it would not be advisable for the prosecutor and the Convening Authority to place too much reliance on any future charges that allege an offense that is not a violation of the international law of war.

a.  The Article III problem

The primary problem, as Steve has written about in several articles (and an amicus brief submitted in al Bahlul), and as Marty blogged about here, is that the ex post facto question is hardly the most substantial constitutional hurdle that would threaten to undermine any commission convictions for offenses that do not violate the international law of war.  Even if it were sufficiently established that an unrealized conspiracy, or some other offense, was an established offense under the “domestic common law of war” prior to 2001 (such that there was no ex post facto problem), that would only tee up an even more fundamental jurisdictional question, one that the en banc court remanded to the three-judge panel in al Bahlul—namely, whether Congress may provide for trial of such offenses in military commissions, rather than in Article III civilian courts.

In his separate opinion, Judge Kavanaugh writes that “there is no textual support” for the proposition that Congress must provide for such a “domestic common law” offense to be tried in an Article III court.  That’s a very strange thing to say, because the constitutional text itself is fairly unambiguous:  Article III provides that “the judicial power of the United States” shall be vested in courts with tenure and emolument protections; that that judicial power of the federal government “shall extend to all cases, in law and equity, arising under . . . the laws of the United States”; and that “the trial of all crimes, except in cases of impeachment, shall be by jury.”  Trial of a “domestic common law of war” offense by a military commission—which does not use juries or tenure-protected Article III judges—would therefore be in tension, to say the least, with these textual provisions of Article III.  (And because commissions do not use grand juries, it would also appear to be inconsistent with the text of the Grand Jury Indictment Clause of the Fifth Amendment, which provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”  Although the Supreme Court has held that the textual exception for “cases arising in the land or naval forces” justifies courts-martial of service members, it has never extended that holding to encompass trials of enemy belligerents.)

The only reason that there’s even a question about whether such offenses can be tried in military commissions is not because of the relatively unambiguous constitutional text, but instead because the Supreme Court has recognized limited atextual exceptions to the default requirement that all federal crimes be adjudicated by juries in Article III courts supervised by tenure-protected judges.  In addition to the textually based exception for courts-martial of servicemembers, discussed above, the Court has recognized that petty offenses triable at common law without a jury at the time of the founding may be tried without a jury in Article III courts, as can some trials for criminal contempt.  And the Court in Ex parte Quirin (1942) held that, in light of early historical precedents, the Constitution does not require an Article III trial for “offenses committed by enemy belligerents against the law of war.”  See 317 U.S. at 40-45.  But that holding in Quirin applied only to offenses against the international law of war; indeed, the only convictions the Court affirmed in that case were for offenses that the Court assumed were violations of that body of international law.

To be sure, the Supreme Court has never had occasion to determine whether Congress can dispense with an Article III jury trial of offenses by enemy belligerents against the so-called “domestic common law of war”—principally because no one had ever suggested the existence of such offenses until al Bahlul and related cases.  Notably, however, as Steve has explained, none of the reasons for the Court’s recognition of exceptions to the text of Article III—especially the assumption that the Framers did not intend to invalidate certain practices that were common at the framing—would appear to apply to this new category of “domestic law of war” offenses.

Judge Kavanaugh—the only judge in al Bahlul to address the merits of the Article III question—offered three reasons why Article III should not be a barrier to trial by commission.  But none of those reasons is especially compelling.

First, Judge Kavanaugh notes that the Court in Quirin did not hold that an offense must be a violation of the international law of war in order to be exempt from Article III.  This is true, of course, but it merely raises, rather than resolves, the question.  The constitutional default rule is that federal-law offenses must be tried in Article III courts:  It is no accident that the text refers to “all cases, in law and equity, arising under . . . the laws of the United States,” and to “the trial of all crimes, except in cases of impeachment.”  As Quirin indicates, the Court has countenanced some exceptions to this rule, including the exception recognized in that case for offenses by enemies in violation of the international law of war.  But there has to be a compelling reason to recognize such an exception, since it is a departure from the background rule.  To that end, all of the Supreme Court’s recent forays into the scope of non-Article III federal adjudication have emphasized the importance of narrowly construing departures from this constitutional norm.  Congress cannot simply decide that it would be more efficient or convenient or appropriate to try certain offenses in a military tribunal, without a jury or a tenure-protected judge, even if it otherwise has an Article I authority to proscribe the underlying conduct.

Second, Judge Kavanaugh points to an 1806 statute in which Congress made spying an offense that can in certain circumstances be tried by military commission, even though spying is not a violation of the international laws of war.  As Judge Kavanaugh notes, the Quirin Court referred to this espionage statute with apparent approval.  The Court in Quirin, however, appears to have assumed, mistakenly, that spying is (or at least was) a violation of the international law of war, so its blessing of the federal spying statute doesn’t say anything about the power of Congress to provide for non-Article III military trials for spying that violates only domestic law.  Perhaps the 1806 statute was constitutional—say, for example, because it codified an established pre-1787 practice that the Framers should not be presumed to have questioned—or perhaps not.  But the mere existence of that statute surely does not mean that Congress is free to deem any armed-conflict-related offense a “domestic common law of war crime” and thereby circumvent the protections of Article III.

Finally, Judge Kavanaugh reasons that if “domestic common law of war” conspiracy offenses had to be tried in Article III courts, that would call into question the constitutionality of the military commission convictions of the Lincoln conspirators in 1865 and of the Nazi saboteurs in 1942.  The answer to this objection is twofold:  First, the executive officials who approved those charges and convictions assumed, rightly or wrongly, that the conduct in question did violate the international law of war—they did not depend on the notion, only recently hatched, that the offenses were mere violations of a “domestic common law of war.”  Second, if it turns out the conduct in those cases did not violate the international law of war, and that therefore those offenses had to be tried in Article III courts . . . so what?  The fact that those trials occurred hardly means that they were constitutional.  (Indeed, it is very striking that the Court in Quirin did not affirm conviction of the conspiracy charges in that case—perhaps because it had doubts about whether the offense stated a violation of the laws of war.)

In any event, this is a question that the original three-judge panel in al Bahlul will now have to address.  And presumably it will do so de novo, since it is a question that goes directly to the military commission’s constitutional jurisdiction.  (Judge Kavanaugh understands the majority to have “indicate[d]” that plain error review is the standard to be applied to the Article III question.  But that’s both descriptively and substantively inaccurate—the majority indicated nothing of the sort, nor would it have been justified in doing so.)  Therefore the Chief Prosecutor and the Convening Authority presumably will not–or, at least, should not–swear and refer any new charges that do not allege violations of the international law of war until, at a minimum, the Article III question is resolved in al-Bahlul.

b.  The remaining ex post facto problems

The prosecutor and Convening Authority would also be running a significant risk under the Ex Post Facto Clause if they were to bring new charges for pre-MCA conduct that did not violate the international laws of war.  That might sound like a strange thing to say when the two judges of the en banc court to have reached the merits (Brown and Kavanaugh) both concluded that a stand-alone conspiracy conviction would not violate the Ex Post Facto Clause (and when a third, Judge Henderson, would have held that the Clause does not even apply to Guantánamo detainees).  Both of the majority’s rationales for why Bahlul’s own conspiracy conviction survives “plain error” review, however, would be on thin ice under de novo review—the standard that would almost certainly apply in any future case, because a future defendant is very likely to preserve the objection.

i.  Does the Ex Post Facto Clause prohibit Congress from removing guarantees to trial by jury with a tenure-protected judge after the defendant has acted?

Let’s begin with the majority’s § 2332(b) rationale—namely, that perhaps a defendant can be convicted of a new MCA (i.e., 2006-codified) offense in a military commission if he could have been convicted of that exact same offense in an Article III court at the time of his conduct.  For starters, the al Bahlul majority acknowledges that, outside the context of “plain error” review, the elements of the offense found beyond a reasonable doubt by a commission panel would at a minimum have to include all of the elements of the title 18 offense itself in order to withstand an ex post facto challenge.  For example, a § 2332(b) conviction would have to be based upon determinations by the military panel, supported by sufficient trial evidence, that the defendant conspired (i) overseas to (ii) kill a U.S. national—findings the panel did not make in al Bahlul itself.  It is not obvious that many commission verdicts would match up so closely with the elements of title 18 offenses that were on the books back when the defendant acted.

Moreover, even in those (hypothetical) cases where the elements would match up to those of a preexisting title 18 offense, the majority’s tentative rationale—that there’s no ex post facto problem if, after the conduct occurs, Congress shifts the trial from an Article III court to a military commission, thereby eliminating the jury, the grand jury, and a tenure-protected judge—is, in Judge Kavanaugh’s words, a “rather aggressive” new theory, one about which Judges Kavanaugh and Brown themselves “have serious doubts” (see Kavanaugh op. at 29; see also Brown op. at 4 n.1).  Judge Kavanaugh understandably wonders: “Can Congress, consistent with the Ex Post Facto Clause, really just pull out the federal criminal code and make offenses retroactively triable before military commissions?”

The al Bahlul majority is correct to point out that the Supreme Court’s existing ex post facto doctrine has not condemned such a practice (since the issue has never come before it); and it is also fair for Judge Henderson to note that in Collins v. Youngblood (1990), the Supreme Court reasoned that the right to trial by jury “is obviously a ‘substantial’ one, but it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause.”

Notably, however, the Court later clarified that Collins was mistaken in suggesting that the definitions of crimes, defenses, and punishments are the only concerns animating the Ex Post Facto Clause—“one of the principal interests that the Ex Post Facto Clause was designed to serve,” according to the Court in Carmell v. Texas (2000), is “fundamental justice.”  The Carmell Court explained that the Clause is also designed to address cases in which “the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction.”  “There is plainly a fundamental fairness interest,” explained the Court, “even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.”

To be sure, the Ex Post Facto Clause does not prohibit all post-conduct statutory changes advantageous to the prosecution (such as changes to some evidentiary rules), and Carmell did not call into question Collins’ more specific holding that reducing the size of a jury from twelve to eight members does not violate the Ex Post Facto Clause.  Would the Court likewise conclude that it is permissible, after the operative conduct has occurred, for Congress to entirely remove the defendant’s rights to a jury, a grand jury, and a trial before a tenure-protected Article III judge, all at once?  Perhaps.  But the ultimate fate of such an argument before the court of appeals and the Supreme Court remains uncertain, to say the least.

ii. Does 10 U.S.C. § 821 authorize military commission trial of offenses against the “domestic common law of war” that are not violations of the international law of war?

In any event, most other conspiracy charges that the military commissions prosecutor would bring—including those for conduct occurring before the MCA’s enactment that do not describe offenses against the international law of war—presumably would not square up precisely, element by element, with pre-MCA title 18 offenses.  The ex post facto question in such cases would therefore be whether, on de novo review, the courts would conclude that 10 U.S.C. § 821, which was on the books as of 2001 (indeed, as of 1916), afforded military commissions the authority to try so-called “domestic law of war” offenses that do not constitute violations of the international law of war.

Recall that § 821 provides that certain statutory provisions Congress enacted in 1916, conferring jurisdiction upon courts-martial, “do not deprive military commissions . . . of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of warmay be tried by military commissions . . . .”  In al Bahlul, the government argued that in enacting section 821, Congress intended to preserve military commission jurisdiction not only over offenses that are recognized as appropriate for military prosecution under the international law of war, but also for trial of offenses that are not recognized in international law but that allegedly “may be tried in military commissions” according to a longstanding domestic common “law of war.”  In particular, the government argued that § 821 should be read to preserve commission jurisdiction to try inchoate conspiracy offenses that had been tried by rump military courts in Missouri pursuant to some field orders during the Civil War.

The al Bahlul majority made quick work of the government’s reliance on the Missouri field orders (see pages 46-48 & n.16)—it refused to place much reliance on them because (among other reasons) “the field precedents are terse recordings of drumhead justice executed on or near the battlefield” that “were not always models of due process,” and with an “unclear jurisdictional basis,” since they “operated as both martial law or military government tribunals and law-of-war commissions.”  Not a single one of the seven judges in al Bahlul relied on the Missouri field order precedents—which is why the Court unanimously reversed al Bahlul’s material support and solicitation convictions.

The majority did, however, cite three other precedents that it assumed Congress might have intended to ratify as proper cases for military commission trial when it enacted § 821 in 1916 and then reenacted it in 1950:  the 1865 convictions of the Lincoln assassination conspirators, the conspiracy conviction of German saboteurs in 1942, and the conspiracy conviction of William Colepaugh and Erich Gimpel in 1945.

Judge Kavanaugh is surely correct to note that when Congress enacted and reenacted § 821, it was aware of the infamous 1865 and 1942 conspiracy convictions, and that “no authoritative source of U.S. law” has ever “negated” their validity.  Even so, it simply does not follow, as Judge Kavanaugh suggests, that “[b]y stating that Section 821 did not ‘deprive’ military commissions of their traditional authority, Congress necessarily incorporated the Lincoln assassins precedent for conspiracy when it enacted the original version of Section 821 in 1916, and it incorporated the Lincoln assassins and Nazi saboteur precedents for conspiracy when it re-enacted the statute in 1950 as part of the Uniform Code of Military Justice.”  Indeed, there would be several serious problems if the government were to rely on these three precedents on de novo review of the constitutional question in a later case.

For one thing, in enacting § 821 Congress did not preserve the “traditional authority” of military commissions wholesale:  At most, it preserved their jurisdiction “with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions.”  If prior commissions decisions involved “offenses that by statute or by the law of war may be tried by military commissions,” then § 821 preserved jurisdiction to try such offenses in commissions.  But to the extent such precedents involved offenses that may not be tried in commissions “by the law of war,” then the text of § 821 offers no reason to think Congress intended to authorize their trial in military commissions going forward.

Second, as Judge Kavanaugh himself reasoned in Hamdan II, when it used the term “by the law of war” in § 821 Congress almost surely was referring only to the international law of war—the  only “law of war” the legislators would have been familiar with.  And that is true even if Congress assumed that it was not calling into question the 1865, 1942 and 1945 conspiracy precedents, because the commission trials in those instances proceeded (and were blessed by executive officials) on the understanding that the conspiracies alleged there violated the international law of war, not some vaguely defined (and then unheard-of) “domestic” common law of war.  (Attorney General Speed, for example, in his opinion in support of the Lincoln assassination trial, referred to the charges there as alleging “offenses against the law of nations”—and he stressed that such international law of war offenses are notnecessarily domestic law crimes.)

Third, as Judge Rogers stressed in her separate opinion in al Bahlul, in each of those three precedents, the government proved that the (international) law of war offenses that were the subject of the alleged conspiracies had been committed.  It remains an open question even today whether international law supports a stand-alone charge of a conspiracy to commit a completed violation of the law of war (as opposed to a theory of liability for participating in a joint criminal enterprise to complete the underlying substantive war crime).  But, in any event, those three precedents have nothing at all to say about a conspiracy charge where the government does not prove that the conspiracy resulted in a substantive violation of the law of war.

Finally—and this is a topic for a much longer future discussion—the three precedents in question are hardly sacrosanct, even with respect to the law of war questions that they purported to decide.  For example, the Supreme Court’s decision in Ex parte Quirin, the Nazi saboteurs’ case, was by virtually all accounts “not a happy precedent” (Justice Frankfurter’s characterization) and “not th[e] Court’s finest hour” (as Justice Scalia wrote in Hamdi).  And even in that “controversial” decision (as the Hamdan Court referred to it), where the Justices bent over backward to affirm convictions and sentences that had already been executed, the Court conspicuously declined to address whether the conspiracy convictions there were constitutional.

Likewise, Attorney General Speed’s justification for the military trial of the Lincoln conspirators, upon which the al Bahlul majority and Judge Kavanaugh place such great reliance, is, to say the least, not the most celebrated of Attorney General opinions.  Speed barely even bothered to explain why Booth’s killing of Lincoln was a violation of the law of war, except in his conclusory characterization of it as a “treacherous murder” by someone acting as a “public foe.”  And he offered not a word about why a conspiracy to commit such a murder violated the law of war, except to note in passing that “to unite with banditti, jayhawkers, guerrillas or any other unauthorized marauders is a high offense against the laws of war,” a view that no longer reflects the law of war (if it ever did).  Moreover, Speed’s conclusion that the conspirators could be tried in a military commission when the civil courts were open was at least arguably called into question by the Court’s later decision in Ex parte Milligan; and even Speed himself suggested that if the offenses had been domestic law “crimes,” rather than international law of war offenses, it would have been necessary to try them in available Article III courts.

All of which is to say that there remains a serious question to this day whether the trials of the conspiracy offenses by military commissions in the three cases cited by the Bahlul majority were proper, even under the governing “law of war” at the time.  And there’s an even greater uncertainty about whether such offenses would be triable by commissions “by the law of war” today, as section 821 requires.  Accordingly, were the court of appeals to have occasion to return to the merits of the Ex Post Facto Clause challenge in a case in which the objection were properly presented, it is hardly a given that the government would prevail, notwithstanding the fact that it appears to have three votes in hand.

* * * *

For all of these reasons, convictions in commissions for conduct that does not violate the international law of war would be subject to serious constitutional challenge if and when they were again considered by the (since-expanded) en banc court of appeals and/or by the Supreme Court.  It is therefore unlikely that the commissions’ Chief Prosecutor and Convening Authority will rely too heavily, if at all, on such charges in future cases.

Jack Goldsmith has suggested that “Bahlul appears to be a step in the direction of judicial acceptance of the basic legitimacy of commissions.”  But with the exception of the equal protection argument that the en banc court did not reach in al Bahlul, none of the issues presented in that case called into question the “basic legitimacy” of military commissions.  The high-profile cases before the commissions–the trial of the 9/11 defendants, for instance–would not have been materially affected no matter what the court did in al Bahlul.  What the case did call into question is the important matter of whether the commissions should be viewed as special tribunals to try violations of the (international) law of war–such as the deliberate targeting of civilians on 9/11–or whether, instead, the military commissions could also be used to try domestic-law offenses that are traditionally the subject of Article III courts, as the language of Article III establishes as the constitutional norm.  Monday’s decision does not conclusively settle that question, but it underscores the serious constitutional objections that the commissions would have to overcome if they were to be used to prosecute domestic law offenses.

Footnote

* For what it’s worth, it is certainly open to question whether the evidence at trial that al Bahlul conspired to kill U.S. nationals was as “overwhelming” as the court assumes.  Judge Henderson’s majority opinion relies principally on a confusing statement made by al Bahlul at a pre-trial session of the commission, in which he claimed to be “kill[ing] Americans” or to “fight America” even at that moment—“I am not guilty.  I am not guilty.  I am not guilty.  And what I did and I will do, and I’m doing right now, is to kill Americans–to fight–excuse me–to fight America.”  The court also cites to hearsay testimony of Guantánamo interrogators that Bahlul told them during his custody that he felt no remorse about the 9/11 attacks, which he considered legitimate, that he considered U.S. taxpayers to be “fair targets,” and that he swore an oath, or bayat, to Osama bin Laden knowing that al Qaeda was devoted to a jihad that could include the killing of civilians, including U.S. civilians.  Make no mistake: Bahlul surely did a lot of things warranting condemnation and possible criminal conviction, including transcribing the videotaped “martyr statements” of two of the hijackers after the 9/11 attacks.  The court of appeals did not, however, cite any trial evidence that Bahlul actually agreed to kill U.S. nationals in violation of § 2332(b).  Be that as it may, however, whether the court was right about whether the trial evidence would have supported a § 2332(b) conviction is of little importance going forward in this and other cases.

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About the Authors

is a Professor at the Georgetown University Law Center.

is co-editor-in-chief of Just Security. Steve is a professor of law at American University Washington College of Law. Follow him on Twitter (@steve_vladeck).