I have nothing of substance to add to Marty’s excellent recap of this morning’s en banc D.C. Circuit oral argument in “Al Bahlul IV,” and agree with him entirely that “Several of the judges on the court, perhaps a majority, are uneasy about the prospect of issuing a broad decision, one way or the other — for example, to hold that Congress cannot authorize any domestic-law offenses to be tried in a military commission, or to hold that Congress can authorize any and all such offenses to be tried in a commission, as long as they are committed by an enemy belligerent in connection with hostilities.”
But because I’m less polite than Marty, I thought I’d make plain what is implicit in his post:
That, of the 10 judges, there appear to be three solid votes for the government (under either standard of review), to wit, Judges Brown, Henderson, and Kavanaugh; and three solid votes for al Bahlul (under de novo review), to wit, Judges Pillard, Rogers, and Tatel. Thus, the whole ballgame comes down to the four judges “in the middle,” i.e., Chief Judge Garland and Judges Griffith, Millett, and Wilkins. And because of the posture of the case, al Bahlul needs at least three of them to side with him (to get to six) in order to prevail. If the questioning at this morning’s argument is any indication, I just don’t see that happening — all the more so because Deputy Solicitor General Gershengorn received no questions from either Chief Judge Garland or Judge Millett during his (quite stellar) 47-minute presentation, and only relatively cursory questions, right at the very end of his argument, from Judges Griffith and Wilkins. Judges Griffith, Millett, and Wilkins, in contrast, were far more active in their questioning of al Bahlul’s counsel, Michel Paradis, who, in my view, was also excellent.
Assuming, then, that al Bahlul doesn’t have at least three of those four votes, it seems to me that the real question is how the government wins — pursuant to a majority opinion that embraces one of the two narrow grounds Marty noted (the “plain error” standard of review or a more specific reconceptualization of al Bahlul’s “conspiracy”), or thanks to a fractured court where neither of those theories commands a majority. My gut instinct based upon how today’s argument went is that we’re headed for the latter — with the government winning 7-3 or 6-4, but without a majority rationale. That result would have the effect of (1) leaving al Bahlul’s conviction intact; (2) doing nothing to settle the commissions’ power to try non-international war crimes in other cases; and (3) in the process, perhaps insulating this particular case (and, for the time being, this question) from the Supreme Court’s attention, since the stakes of such a result will be far murkier…
All of this leads me to ask: At some point, wouldn’t resolution of the Article III question actually be useful for the military commissions (and not just for we who write about them)? Or is this all just an elaborate game to play out the string — and, as such, a waste of a whole lot of time, energy, and judicial resources?