War court only.

Photographer: Brennan Linsley-Pool/Getty Images

Keeping Conspiracy Out of Guantanamo Trials

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Can the military tribunals at the prison in Guantanamo Bay, Cuba, try civilian offenses? In a landmark decision in June, a panel of the U.S. Court of Appeals for the D.C. Circuit said no, restricting the tribunals to international war crimes and short-circuiting most Guantanamo trials except for the Sept. 11-related ones. But the court decided Friday to rehear the case en banc, effectively vacating the panel’s opinion.

The result will take some time: A new oral argument before the whole court will take place in December, and the decision might take until next June. The panel’s holding could still be affirmed, yet the augury is bad for a decision that was a bold blow against special commissions. More striking, some Democratic nominees must have voted for the rehearing, itself a worrisome sign that loyalty to the Barack Obama administration’s pragmatic efforts to try the detainees may be outweighing concern for principled constitutional protections.

The defendant in this case, Ali al-Bahlul, was tried and convicted before the Guantanamo military commission for serving as a media relations adviser to al-Qaeda in the run-up to the Sept. 11 attacks. (Among other things, he produced a propaganda video that the Lackawanna Six testified to having watched.) The conviction was for three crimes: material support to terrorism, soliciting murder and conspiring with al-Qaeda.

In 2014, the D.C. Circuit sitting en banc reversed the tribunal’s convictions for material support and solicitation of murder, ruling that these crimes hadn’t been made triable before a military commission when Bahlul committed them, so the convictions violated the ex post facto clause of the U.S. Constitution.

At that time, the D.C. Circuit didn’t overturn the conspiracy conviction. Bahlul hadn’t made the argument before the commission that this conviction violated the ex post facto clause. The appeals court said that as a result, it would overrule the commission only if it had committed plain error. And the D.C. Circuit said it wasn’t plain that there was no law making conspiracy triable before a commission.

In June 2015, the D.C. Circuit panel overturned the conspiracy charge as well. Its reasoning was fairly straightforward: Military commissions are permitted by the Constitution only to try offenses under the law of war as it’s understood in international law. Otherwise, if the charge is a civilian charge, the defendant gets a trial in an ordinary court established under Article III of the Constitution. Two of the three judges on the panel concluded that conspiracy isn’t a crime under the international law of war. It followed that Bahlul couldn’t be convicted for it.

There was a catch, however: Bahlul hadn’t argued before the commission that the tribunal could only try him with international war crimes. The Department of Justice argued that because Bahlul hadn’t made this argument, he forfeited the right to make it on appeal.

Ordinarily, if you don’t make an argument to the trial court, you can’t make it on appeal. This rule sounds harsh, and often in practice it is. But it’s justified on the theory that judicial resources need to be conserved and that defendants shouldn’t be able to game the system by coming up with arguments on appeal that the lower court never was able to consider.

The D.C. Circuit said Bahlul’s new objection to being tried for a civilian crime by military commission fell into an established exception to the rules of forfeiture. Specifically, the panel said that Bahlul had raised a fundamental structural challenge to the very authority of the commission. Put simply, if it’s true that military commissions can only try international crimes, then there’s something basically illegitimate about the conviction.

A dissenting judge, Karen LeCraft Henderson, rejected the notion of a fundamental structural problem. And she concluded that it wasn’t plain error to think that conspiracy is an international war crime triable by military commission. In support, she cited Ex Parte Quirin, a notorious 1942 Supreme Court decision that unfortunately has set much of the precedent for military commissions.

The practical consequences of the June decision was that, except for the Sept. 11 defendants who can be charged with international war crimes, many of the Guantanamo detainees probably can’t be charged with a crime at all. That would be bad for the Obama administration’s hopes of removing the detainees from limbo and charging as many as possible with crimes. But the countervailing benefit is that it preserves the jurisdiction of civilian courts over civilian crimes -- a crucial element of civil liberties protection in a democracy.

By agreeing to hear the case again, the D.C. Circuit signaled that it may well reach a different conclusion. Counting heads, it would seem that two Democratic appointees would have had to vote for an en banc hearing -- and apparently they did.

Their motive could be pragmatic, as is the Obama administration’s: If you can’t try Guantanamo detainees, what can you do with them? Or it could be loyalty to the administration itself. On the law, however, one can only hope that the Democratic nominees -- and indeed the whole court -- would recognize that the commission’s jurisdiction over civilian crimes is an issue that can’t be forfeited. And one would hope they would also conclude, as a plurality of the U.S. Supreme Court did in the 2006 Hamdan case, that conspiracy isn’t a crime under international law -- especially because no other country recognizes it and no international tribunal presently in existence considers a crime. The future of many Guantanamo detainees is in the balance.

  1. Judge David Tatel wrote a concurrence explaining that while he had voted to uphold the conviction in the first en banc review, that was based on a different standard of review, and so his two judgments weren't inconsistent.

  2. That flawed World War II era opinion was issued only after the execution of German saboteurs who landed in Amagansett on Long Island and in Ponte Vedra Beach, Florida. In it, the court came close to saying that they were guilty of conspiracy -- a result that seemed attractive because the saboteurs hadn't actually done anything wrong once they reached the U.S. But the court also hedged its bets by saying that the saboteurs had committed the war crime of sneaking into U.S. territory and being there without their German military uniforms.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net