Article III and the Bottom-Side Briefing in <em>al Bahlul</em>

Jane already flagged the merits brief filed by the U.S. government on September 17 in al Bahlul v. United States, the major challenge to the power of the Guantánamo military commissions to try non-international war crimes that was remanded by the en banc D.C. Circuit to the original three-judge panel back in July (and in which oral argument is scheduled for October 22). And last Monday, an amicus brief was filed by Peter Margulies and James Schoettler in support of the government, on behalf of a range of "former government officials, former military lawyers, and scholars of national security law." Although there's lots to say about both briefs, what's perhaps most telling about them is how desultory their treatment is of what, to me, is the main question the three-judge panel must now resolve: Whether Article III (and the jury-trial provisions of Article III and the Fifth and Sixth Amendments) mandates trials of non-international war crimes by non-U.S. military personnel in civilian, rather than military, courts. While I'm necessarily biased (I've co-authored amicus briefs of my own on the Article III question at each stage of the D.C. Circuit proceedings in al Bahlul), the bottom-side briefing certainly doesn't seem to come anywhere near carrying the government's burden to justify the assertion of military jurisdiction over such offenses. I. The Terms of the Remand By way of refresher, readers will likely recall that, on July 14, the en banc D.C. Circuit rejected al Bahlul's Ex Post Facto Clause challenge to his conspiracy conviction, holding that he had forfeited that argument by failing to raise it below, and that, on highly deferential "plain error" review, it wasn't sufficiently clear that conspiracy couldn't be tried by a military commission at the time of his underlying conduct. (The Court of Appeals reached the opposite conclusion for al Bahlul's solicitation and material support convictions--throwing them out even under "plain error" review.) But the en banc majority--over strong dissents from Judges Brown and Kavanaugh--kicked everything else back to the original three-judge panel. As Judge Henderson summarized, "everything else" included al Bahlul's four other challenges to his conspiracy conviction:

(1) the Congress exceeded its Article I, § 8 authority by defining crimes triable by military commission that are not offenses under the international law of war, (2) the Congress violated Article III by vesting military commissions with jurisdiction to try crimes that are not offenses under the international law of war; (3) his convictions violate the First Amendment; and (4) the 2006 MCA discriminates against aliens in violation of the equal protection component of the Due Process Clause.

And although some of these arguments may also be subject to "plain error" review, it should be clear that the second claim--that Article III precludes military trials of non-law-of-war offenses by non-servicemembers--is not, since it goes to the constitutional jurisdiction of the military commission, and so is "jurisdictional" in any sense of the term (more on this below). Either way, though, all four of these issues were set to be briefed by the parties once more, and to be argued before the original three-judge panel (Henderson, Rogers, & Tatel, JJ.) on October 22. II. The Bottom-Side Remand Briefs Partly because it's jurisdictional, and partly for other reasons, I've always thought the Article III argument was al Bahlul's strongest (once the Ex Post Facto Clause challenge went away). Reasonable minds can likely disagree about Congress's interpretive latitude under the Define and Punish Clause (and I have written as much), the Supreme Court's decision in Humanitarian Law Project seems an ominous omen for al Bahlul's First Amendment challenge, and the government need only have a rational basis, typically, to discriminate based upon alienage. And yet, the government devoted only 11 pages of its 70-page brief to the Article III issue, largely cribbing from Judge Kavanaugh's discussion of the Article III challenge in his solo opinion concurring in part in and dissenting in part from the en banc majority. At its core, the government's argument is that: (1) this claim is only subject to plain error; and, on the merits, (2) "the sabotage offense at issue in Quirin – which the Court viewed as akin to spying – is not and has never been an offense under the international law of war. Consequently, Quirin cannot be read as “barring military commission trial of non-international-law-of-war offenses,” as the decision rested on a longstanding statute making an offense triable by military commission that is not a violation of international law." In other words, because Quirin upheld a military commission conviction for an offense not against the international laws of war (according to the government), Quirin thereby supports the assertion of military jurisdiction over the conspiracy offense at issue here. There's a bit more, but that's basically it. Nor does the Margulies/Schoettler amicus brief provide any additional support. On the Article III issue, it merely asserts in a footnote that "Military commissions without a jury are an appropriate forum for adjudication of a belligerent’s alleged crimes, even when U.S. civilian courts are open." Of course, that's overbroad; not even the government argues that enemy belligerents can be tried for any offense in a military commission (see footnote 9 of the government's brief). The government's position, instead, is that Article III does not forbid military commission trials of "an offense . . . committed by an enemy belligerent against the United States in the context of an armed conflict." III. Why the Government's Position Fails to Persuade First, the plain error argument is almost specious. Although the government argues that the commission clearly had "subject-matter jurisdiction" because the MCA conferred it, it goes without saying (or it should, anyway) that a challenge to a statute on the ground that it unconstitutionally confers subject-matter jurisdiction is, in all respects, "jurisdictional," and thus not subject to waiver. After all, the whole crux of the Article III argument is that the Constitution itself divested the commission of the power to try non-international war crimes (like conspiracy). If that doesn't go to the commission's "subject-matter jurisdiction," what does? As for the merits, as I've explained at some length during previous phases of this litigation, there are two separate--but equally important--flaws in the government's (and Judge Kavanaugh's) reliance upon Quirin in support of this position. First, the Quirin Court incorrectly did believe that the sabotage offenses it was discussing were violations of the international laws of war at the time Quirin was decided. After all, Quirin's interpretation of the authorizing statute (as later confirmed by the Supreme Court in Hamdan I) was as only authorizing military commission trials for international war crimes--requiring the Justices to conclude that at least one of the charged offenses before the commission was an international war crime. Whether or not Quirin's analysis of international law was correct, its constitutional analysis turned on its conclusion that sabotage was an international war crime--which was itself a necessary predicate to the assertion of statutory jurisdiction. Thus, the jury-trial exception Quirin articulated for "offenses by enemy belligerents against the laws of war" necessarily only encompassed international war crimes, whether or not the offenses Quirin considered should have qualified as such. Quirin may well have been wrong on international law, but that doesn't convert an international law-based interpretation of the jury-trial protections and Article III into the position the government now advances. Second, even if Quirin can be read to have unnecessarily addressed a sweeping constitutional proposition that wasn't before it (i.e., that military commissions can sometimes try non-international war crimes), all that conclusion establishes is that Article III does not forbid military commission trials for spying and aiding the enemy, the two enigmatic historical precedents Quirin discussed. It's possible that these offenses are unique--that the Founders clearly understood them to fall outside the jury-trial requirements of Article III. It's also possible, as I argue in a forthcoming Georgetown Law Journal article, that Article III allows military trials for any offense triable by military court under international law, whether or not it is a war crime (a result that would explain why occupation courts don't violate Article III even when they try ordinary offenses, as in Madsen v. Kinsella). Either way, that doesn't explain how the government gets from military trials for spying and aiding the enemy (for which there are clear Founding-era precedents) to military trials for conspiracy (for which there are none). But what's perhaps most telling about the government's arguments in its brief is how unresponsive they are to the arguments that have been made by al Bahlul and his amici, especially with regard to Quirin. It may well be that this is simply a question of first impression that Quirin did not decide (in which case I believe there are compelling reasons not to extend Quirin, but there may be non-frivolous arguments for doing so), but the government has appeared to put all of its Article III eggs into the "Quirin clearly supports this" argument. For the reasons offered above (and ad nauseam elsewhere), that basket's got an awful lot of holes in it...