My Last Word on the New <em>Bahlul</em> Amicus

Thanks to his "sur-reply", I finally understand the premise of Peter Margulies’s argument—and his amicus brief—in al Bahlul with regard to why the en banc D.C. Circuit can affirm Bahlul’s conspiracy conviction even though conspiracy is not a war crime under international law: Because Bahlul was actually tried for murder, even though no one in the courtroom—not the defendant, his counsel, the judge, the prosecutor, or, you know, the jury—knew it. Peter asserts that “From the start of the trial, the prosecution treated the overt acts related to 9/11 as separate charges.” But as Kevin Heller has shown, that’s just not true. But let’s pretend that it was. At its core, Peter’s argument is that, when Congress passes a statute authorizing military commissions, it’s authorizing the trial of any offense that’s triable as a war crime under international law regardless of what the statute itself says, or how the offense is charged and tried. So long as international law recognizes the defendant’s liability under some theory—whether as a principal for a standalone offense or on a theory of enterprise liability for a separate offense—it’s the functional argument that matters, not the form (i.e., the actual trial). And here’s the thing: Congress has arguably passed such a statute! That’s the whole point of Article 21 of the Uniform Code of Military Justice—the provision that the Supreme Court held to authorize the military commission trial of the Nazi saboteurs in Ex parte Quirin, and the one that the Supreme Court held not to authorize Hamdan’s trial by military commission in Hamdan v. Rumsfeld (Hamdan I). Simply put, that statute authorizes commissions for “offenders or offenses that by statute or by the law of war may be tried by military commissions.” And so, in a commission under Article 21, I would entirely understand the argument that the labels are less important than what’s actually proven—i.e., that a “conspiracy” conviction could theoretically be defended based upon a “JCE + completed war crime” approach. As the Supreme Court explained in In re Yamashita, “charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a common law indictment.” The problem for Peter--and for his amicus brief--is that commissions under the MCA (“Chapter 47A commissions") don’t have the same functionalist mandate as commissions under Article 21 (“Chapter 47 commissions"). Instead, they have specific procedural and substantive rules—all of which were followed in Bahlul’s case. Thus, even if the “closely related offense” doctrine were available in “law-of-war” trials under Article 21 [N.B.: the Court of Appeals for the Armed Forces unanimously held such a doctrine to be a violation of due process, even in a military trial, in 2010 (H/T: Chad Fisher)], the statute that actually authorized Bahlul’s trial doesn’t itself allow for it. Period. Nor could the en banc D.C. Circuit retroactively transmogrify Bahlul’s 10 U.S.C. § 950t(29) conspiracy conviction into a “JCE + completed war crime” conviction by a nunc pro tunc Article 21 military commission. The MCA itself amended Article 21 to provide that "This section does not apply to a military commission established under chapter 47A of this title." And even if the D.C. Circuit did have such mystical (and common-sense- and statute-defying) powers, it would still beg the question of whether Article 21 authorizes a military commission trial based upon the “JCE + completed war crime” approach. Lest anyone think that there's actually a "there" there, that was the exact argument on which Justice Thomas tried to defend the validity of the conspiracy charge in Hamdan I—and a plurality of the Supreme Court rejected it...