Evidence of Absence: A Brief Reply to Peter Margulies on the <em>al Bahlul</em> Argument

In light of both our prior exchange and my Just Security post from yesterday, I only have two new points to make in response to Peter Margulies' post on yesterday's D.C. Circuit oral argument in al Bahlul v. United States, which raises the question whether military commissions may constitutionally try offenses that are not recognized as international war crimes. As I explain, both of these issues arose during yesterday's argument--and in both cases, Peter's post offers no explanation for why he reads the colloquies in which they arose so differently than I do.

1. First, and right off the bat, Peter fundamentally mischaracterizes what the en banc Court of Appeals actually held in its July decision--in his words, "that the Ex Post Facto Clause did not bar the conviction for inchoate conspiracy of Ali Hamza al Bahlul, a former bin Laden aide whose acts the D.C. Circuit found 'directly relate' to the 9/11 attacks." John DePue, arguing for the government, attempted a similar reading of the en banc court's decision at one point during yesterday's argument, only to be rebuffed by Judge David Tatel, who was quick to emphasize that such a holding came in the highly deferential context of "plain error" review, and was thus of no relevance to the question now before the court--whether, under de novo review, the Constitution permits law-of-war military commissions to try offenses not recognized as international war crimes. Indeed, the narrowness of the en banc court's decision only raised the stakes of yesterday's argument, rather than providing a roadmap for how the Article I and Article III issues should now be resolved.
2. Second, and more significantly, Peter argues that Ex parte Quirin, fairly read, supports military jurisdiction over both international war crimes and  "those domestic law charges related to armed conflict that international law permits states to try in commissions." Whether or not Quirin specifically holds as much (I'm more than a little skeptical--and so was Judge Tatel, who spent a fair amount of time yesterday literally quoting Quirin back to DePue), I actually do agree with Peter that this latter argument is an analytically better way to understand the Supreme Court's military commission jurisprudence--not Quirin so much as cases like Madsen v. Kinsella. Indeed, that's the central prescriptive thesis of my forthcoming article, "Military Courts and Article III." The problem for Peter (and the government)--and the reason why I suspect we didn't hear more of this argument yesterday--is that, even under this broader reading of military jurisdiction, it's of no help to the government in al Bahlul. And that's because there's no evidence in foreign and international practice of any norm--let alone a strong one--supporting military trials for inchoate conspiracy offenses. Don't take my word for it, though--toward the end of the government's presentation yesterday, Judge Judith Rogers specifically pressed John DePue on this exact point, asking him to provide any evidentiary support for the proposition that there is an international law norm supporting inchoate conspiracy trials in military commissions. Tellingly, DePue demurred.

Whether Article III does--or should--sweep more broadly than Quirin's text expressly allows, to include offenses that are not international war crimes but over which international law and practice does support the assertion of military jurisdiction--is an interesting question, and one on which reasonable minds can (and will) surely differ. But I have a hard time seeing how it's a distinction worth a difference in al Bahlul--and suspect at least two of the panel's three judges will, as well.