Military Courts and Article III Functionalism: <br> What <em>Al Bahlul</em> Should Have Said

At their simplest, both Judge Henderson's 85-page dissent from the D.C. Circuit's decision in al Bahlul v. United States (in which a divided panel held that Congress violated Article III when it authorized law-of-war military commissions to try wholly domestic offenses), and Peter Margulies' lenghty critique of the ruling reduce to an outwardly straightforward claim: that the central error of Judge Judith Rogers' opinion for the panel majority is its failure to properly heed the Supreme Court's precedents regarding non-Article III adjudication, which, in Peter's words, "have taken a more pragmatic approach and largely deferred to Congress’s Article I powers." As Judge Henderson argued, the validity of the assertion of military jurisdiction should therefore be assessed by reference to the multtifactor balancing test for non-Article III adjudication articulated by the Supreme Court in CFTC v. Schor. Peter agrees: "The functional view, exemplified by Justices Harlan and O’Connor, asks, 1) whether a non-Article III tribunal facilitates Congress’s goals in the exercise of its Article I powers, and, 2) whether a limiting principle curbs the risk to judicial independence."

In a future post, I'll explain why, even if one is inclined to take a functionalist approach to the relationship between military courts and Article III, it's not nearly as obvious to me as it is to Judge Henderson and to Peter that military commissions should be allowed to try domestic offenses like inchoate conspiracy. But before getting into those weeds, I want to devote this post to a far-more fundamental point--that Article III formalism (which Peter describes as the "protective" view) is more appropriate in the context of military courts, and that the al Bahlul majority therefore took the correct approach (and reached the correct answer) to the Article III question. Indeed, the principal shortcoming of Judge Rogers' majority opinion, in my view, is only failing to do more to explain why a more formalistic approach is called for in this context. In the post that follows, I aim to fill that gap.

I. Formalism vs. Functionalism in the Supreme Court's Article III Jurisprudence

Historically, the Supreme Court has recognized three contexts in which non-Article III federal adjudication is permissible: Territorial courts (e.g., the D.C. Superior Court and the U.S. District Court for Guam); military tribunals (e.g., courts-martial and military commissions); and resolution of "public rights" disputes (e.g., the Court of Federal Claims; the Tax Court; "core" bankruptcy proceedings; and most administrative adjudication). As then-Justice Rehnquist put it in 1982, though, the Court has never explained whether its decisions upholding these departures from Article III "in fact support a general proposition and three tidy exceptions . . . or whether instead they are but landmarks on a judicial ‘darkling plain’ where ignorant armies have clashed by night."

Whatever else may be said about the Supreme Court's approach to non-Article III courts, perhaps the most important point to understand is that the Court has looked to different justifications, and applied different interpretive methodologies, to each of these three categories. Thus, as I explained in my recent article, Military Courts and Article III, territorial courts have been tied to Congress's exclusive and plenary regulatory power over federal enclaves, and the concomitant (albeit, in my view, misunderstood) need for local courts of general jurisdiction. Public rights adjudication was initially tied to waivers of the federal government's sovereign immunity, but has evolved to encompass additional claims related to, but not directly arising out of, such waivers. And military tribunals have been based upon two separate but similar sets of justifications: For courts-martial, the Supreme Court has looked to a combination Congress's Article I power to "make rules for the government and regulation of the land and naval forces" and the exception to the Fifth Amendment's Grand Jury Indictment Clause for "cases arising in the land or naval forces" (which the Court has also read into the rights to trial by petit jury in Article III and the Sixth Amendment). And for military commissions, the Justices have relied upon a combination of Congress's Article I power to "define and punish . . . offenses against the law of nations" and an atextual exception to the jury-trial clauses for "offenses committed by enemy belligerents against the laws of war."

The reason why these distinctions matter is because the Court has not only articulated different justifications for these separate categories, but has applied different modes of analysis to cases implicating their margins. Thus, although it's true that the Justices have, at times, resorted to a multi-factor balancing test in assessing whether certain "public rights" disputes may be resolved by non-Article III federal adjudicators, they have never taken such an approach to either the territorial or military exceptions to Article III--the two contexts in which non-Article III federal courts may entertain criminal prosecutions. (Indeed, the only argument for applying the Schor test to military courts that I'd ever seen before this latest round of litigation came in a 1990 student note.) Thus, and tellingly, all of the cases invoked by Judge Henderson and Peter in support of a "pragmatic" approach are civil cases arising under the "public rights" exception, where, however controversially, such functional balancing has been a staple of the Court's approach for the past three decades.

II. Why a Functional Approach to the Military Exception Doesn't Make Sense

The reason why the Supreme Court has eschewed functionalism with regard to the scope of the military exception to Article III bears underscoring, for it drives home the central analytical flaw in Judge Henderson's dissent: The constitutional limits on military jurisdiction, although better understood, as I've argued, as "structural Article III limits," have actually been enforced through the jury-trial clauses of Article III and the Fifth and Sixth Amendments--provisions that don't readily admit of the same kind of functional analysis as Article III's Judicial Power Clause. Put another way, when the Supreme Court has articulated limits on military jurisdiction, it has done so largely by reference to the jury-trial rights of military defendants--treating the right to a jury trial (and a grand jury indictment) as interchangeable with the right to have an Article III judge preside over federal criminal prosecutions. There are any number of reasons why the Court's historical conflation of the Constitution's jury-trial protections and a right to an Article III judge fail to persuade, but the more important point for present purposes is that these jury-trial protections are never analyzed functionally.

Thus, as Justice Black put it with respect to courts-martial in United States ex rel. Toth v. Quarles, "any expansion of court-martial jurisdiction . . . necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals." To that end, he concluded, "[d]etermining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to "the least possible power adequate to the end proposed."

In other words, whereas the constitutional concern in the context of unduly expansive non-Article III public rights adjudication goes entirely to arrogation of Article III judicial power, the concern in the context of unduly expansive military adjudication is both about diluting Article III and about depriving criminal defendants of their constitutional rights to an Article III judge and grand jury indictment and petit jury trial. (In the public rights context, in contrast, the relevant claims are typically state-law claims, where concerns about usurping the role of Article III courts are far more modest.)

And so, whereas Judge Henderson makes great hay in her dissent out of the fact that "the Supreme Court has found a violation of the Judicial Power Clause in only two cases—both involving bankruptcy courts," she completely neglects the myriad other cases (including Ex parte Milligan, Toth, Reid v. Covert, McElroy v. United States ex rel. Guagliardo, Grisham v. Hagan, Kinsella v. United States ex rel. Singleton, and O'Callahan v. Parker, among others), in which the Supreme Court has struck down exercises of military jurisdiction on other grounds, all of which went to why it was inappropriate for the military, as opposed to civilian courts, to exercise jurisdiction. These cases may not have described their holdings in Article III terms, but that's exactly what they were doing. And, in all of these cases (and even in the even longer list of cases in which the Court has upheld exercises of military jurisdiction), functionalism was nowhere to be seen. Instead, the question the Court has always asked is, if Congress has the Article I power to proscribe the conduct in question, whether an exception to the Constitution's jury-trial clauses justifies subjecting the offender to military, rather than civilian, jurisdiction, for that offense.

III. What a Formalistic Approach to Military Jurisdiction Should Look Like

The above analysis goes to why the al Bahlul majority was correct as a matter of precedent to take a more formalistic approach to the Article III question. Judge Rogers' majority opinion might have benefitted from a bit more discussion of its methodological underpinnings, but I think Judge Tatel's concurrence came much closer to the mark, concluding on page 7 that "this 'inferior' court is without authority to go beyond the Supreme Court’s clear signal, sent first in Quirin and repeated in Yamashita, that military commission jurisdiction is limited to crimes that violate the international law of war." And as Judge Tatel correctly explained, the reasons why the D.C. Circuit is without such authority are because (1) the Supreme Court has stressed "that Article III courts are the default, that exceptions must be 'delineated in [the Court’s] precedents"; and (2) those precedents only encompass military commission trials for violations of the international laws of war. In other words, the analysis in al Bahlul should have begun and ended with the jury-trial exception recognized in Quirin--and the Supreme Court's admonition that Article III exceptions ought to be construed narrowly.

To be sure, insofar as the formalism of the Article III analysis turns heavily on the role of the jury-trial rights, it's worth saying one last word about the residual prong of Judge Henderson's Article III analysis--where she argues that, even if it would otherwise violate al Bahlul's jury-trial rights to try him for a domestic offense in a military commission, those rights simply do not apply, both because (1) there's no right to trial by jury in military commissions; and (2) as a non-citizen outside the territorial United States, al Bahlul has no jury-trial protections. The first argument, of course, is circular, since the validity of military commission jurisdiction turns on the inapplicability of the Constitution's jury-trial protections--and not the other way around.

The second argument merits a bit more discussion, since it's the exact same kind of deeply problematic reasoning that led the Court of Appeals for the Armed Forces to uphold the court-martial of a civilian contractor in United States v. Ali--not because he was functionally indistinguishable from servicemembers, but because he categorically lacked jury-trial rights. As I've explained here before, whatever entitlement non-citizens outside the United States may have to affirmative invocation of constitutional protections, defensive invocations of those rights in criminal proceedings is another matter altogether.

To that end, and to its credit, the U.S. government has never taken the position that non-citizens outside the United States are categorically unprotected by the jury-trial provisions (and, if the Supreme Court felt that way, a number of its military commission cases would've been a lot easier). In any event, even if this argument were viable as to al Bahlul's Fifth and Sixth Amendment jury-trial rights (I remain dubious), Judge Henderson skips over the fact that her discussion here is about the jury-trial right in Article III--which no one has ever suggested depends upon citizenship.

IV. Why Does All of this Matter?

If you've made it this far, you're probably wondering why the functionalism/formalism distinction matters, at least beyond the unique and hyperspecific context of the Guantánamo military commissions. In my view, it matters in two separate respects:

First, as I argued in my recent article, "the difficulties courts have confronted in these cases at once underscore and derive from the incoherence pervading non-Article III doctrine more generally. Indeed, whether consciously or not, the existing incoherence of the military exception may well have helped to precipitate these expansions—or at the very least the judicial decisions upholding them." In English, clarifying that courts should take a formalistic approach to the military exception to Article III—and clarifying what the formal boundaries of that exception are—will have a salutary effect not only with respect to the military commissions, but with respect to any future efforts to subject offenses or offenders which were previously only triable in civilian courts to military trial, as well.

Second, and more immediately, if the government does decide to pursue review of the D.C. Circuit's decision in the Supreme Court, it will be very interesting to see how it frames its objections to the panel decision. Is the problem that, as Judge Henderson and Peter argue, the Court of Appeals should have taken a more functionalist approach to the Article III question? If so, what's the stopping point? How would the government respond to Judge Tatel's concern that, on such a view, "Congress would have virtually unlimited authority to bring any crime within the jurisdiction of military commissions—even theft or murder—so long as it related in some way to an ongoing war or the armed forces"? Or is the problem that, even under a formalistic approach, the "laws of war," as the government has argued in its briefs, should be understood to encompass violations of the "domestic common law of war," as well--and so conspiracy should fall within the jury-trial exception recognized in Quirin? This matters because, in my view, the former argument is more cert.-worthy, but less likely to convince five of the current Justices (not only in light of Justice Kennedy's Hamdan concurrence, but also his more general views about formalism vs. functionalism in separation of powers disputes), whereas the latter argument might find more traction on the current Court, but smacks of the very "error correction" that the Justices purport to disfavor.