{"id":4700,"date":"2016-03-22T20:28:17","date_gmt":"2016-03-23T00:28:17","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=4700"},"modified":"2016-03-22T20:30:03","modified_gmt":"2016-03-23T00:30:03","slug":"us-v-al-bahlul","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2016\/03\/us-v-al-bahlul\/","title":{"rendered":"U.S. v. Al Bahlul: Where It\u2019s Been and Where It\u2019s Going"},"content":{"rendered":"

By Samantha Arrington Sliney[1]<\/a><\/p>\n

I. INTRODUCTION<\/strong><\/p>\n

On November 13, 2001 then-President George W. Bush issued a military order that would forever be remembered.[2]<\/a>\u00a0 His military order \u201ccalled for the [S]ecretary of [D]efense to detain non-citizens accused of international terrorism.\u201d[3]<\/a>\u00a0 Specially, the order applied to members of al Qaeda, and \u201call those who have engaged in, aided, or conspired to commit international terrorist acts against the United States or its citizens.\u201d[4]<\/a>\u00a0 The Secretary of Defense \u201c[was] charged with establishing military tribunals (also called military commissions) to conduct trials of non-citizens accused of terrorism either in the United States or in other parts of the world.\u201d[5]<\/a>\u00a0 Then-President Bush\u2019s military order created the United States (U.S.) Military Commissions that have been the center of continued national and international criticism.<\/p>\n

As part of his November 2001 order, then-President Bush required that the Secretary of Defense create procedures for the commissions \u201cthat would ensure that a detainee would receive a \u201cfull and fair trial.\u201d[6]<\/a> On March 21, 2002, the Department of Defense published its proposed procedures for the commissions, which would be different than a regular civilian criminal court.[7]<\/a>\u00a0 These procedures have since been revised two times to reflect Supreme Court decisions and to ensure the commissions afford the appropriate due process protections to the detainees.[8]<\/a><\/p>\n

From 2001 to the present, the U.S. Military Commissions have been the center of international debate.\u00a0 Even at the onset, critics worried that the commissions would not result in a full and fair trial for the detainees.[9]<\/a>\u00a0 These critics worried that utilizing commissions \u201cto try non-U.S. citizens suspected of terrorism might undermine American credibility overseas.\u201d[10]<\/a>\u00a0 Then-President Bush defended the commissions stating, \u201cWe are an open society, but we are at war.\u00a0 We must not let foreign terrorists use the forums of liberty to destroy freedom itself.\u201d[11]<\/a><\/p>\n

In 2009, the Obama Administration openly supported the concept of U.S. Military Commissions; however, President Obama has not been shy in expressing his concerns for the lack of due process afforded detainees in the Military Commissions Act of 2006. \u00a0After resuming the military commissions in 2009, President Obama stated \u201che supports the idea of military commissions but opposes the version of the law that had been governing such trials in recent years; the Military Commissions Act put in place under the Bush Administration in 2006, but subsequently struck down as unconstitutional by the Supreme Court.\u201d[12]<\/a>\u00a0 He further stated, \u201cmilitary commissions are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered.\u201d[13]<\/a>\u00a0 President Obama said, \u201cthe 2006 act failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees.\u201d[14]<\/a>\u00a0 Sen. John McCain praised President Obama\u2019s progress stating, \u201cToday\u2019s announcement is a step \u2013 but only a step \u2013 toward a comprehensive detainee policy that will deal with the detainees held at Guantanamo and elsewhere in a fashion that both accords with our values and protects our national security.\u201d[15]<\/a> \u00a0President Obama stated further \u201che plans to enhance due process rights for detainees held at the U.S. facility in Guantanamo Bay, Cuba, in order to improve the widely criticized approach created by his predecessor.\u201d[16]<\/a><\/p>\n

While President Obama recognizes that the due processes rights of detainees have been strengthened during his tenure as president, on February 23, 2016 he expressed concerns regarding the military commissions currently taking place under his authority.[17]<\/a>\u00a0 President Obama stated<\/p>\n

But I have to say, with respect to these commissions, they are costly, they have resulted in years of litigation without resolution.\u00a0 We\u2019re therefore outlining additional changes to improve these commissions, which would require congressional action, and we will be consulting with them in the near future on that issue.[18]<\/a><\/p>\n

President Obama gave much credit to the Article III courts and their ability to effectively try terrorists, stating \u201cour preferred option, the most effective option for dealing with individuals detained outside military theaters, must be our strong, proven federal courts.\u201d[19]<\/a> \u00a0President Obama referred to the military commissions at Guantanamo Bay as \u201cnot advance[ing] our national security — it undermines it,\u201d \u201ccounterproductive to our fight against terrorists,\u201d \u201cdrains military resources,\u201d \u201charms partnerships with allies and other countries,\u201d and \u201ccontrary to our values.\u201d[20]<\/a><\/p>\n

As of November 2015, there are still 107 detainees at Guantanamo Bay.[21]<\/a> \u00a0There were 242 detainees at the start of the Obama Administration, and since 2009, 131 have been transferred, repatriated or resettled, four died during detention, and 48 more have been approved for release.[22]<\/a>\u00a0 Three detainees have been convicted by military commission and are still held at Guantanamo.[23]<\/a>\u00a0 There are seven pending military commissions and 49 other detainees being held for indefinite detention without charge or trial.[24]<\/a>\u00a0 Overall, there have been eight detainees convicted by military commission with four of those convictions overturned on appeal.[25]<\/a> There have been four detainee rights cases reviewed by the U.S. Supreme Court with each time resulting in the Justices siding with the detainees.[26]<\/a><\/p>\n

From 2001 to the present, the U.S. has been struggling with the right balance between national security and due process for the detainees are Guantanamo.\u00a0 President Obama\u2019s affirmative action encompassed in the 2009 Military Commissions Act shows some progress, but our judicial system has been struggling to keep up.\u00a0 Because many of the issues on appeal present novel legal issues, the U.S. legal system has seen a multitude of appellate litigation from the military commissions cases.<\/p>\n

U.S. v. al Bahlul<\/em> is no exception.\u00a0 This case has been working its way through the U.S. Military Commission and now through the wickets of the U.S. Court of Appeals for the District of Columbia since 2004. \u00a0Factually the case seems fairly simple, with little to no dispute of the facts between the parties; however, the case presents a novel question that has not been addressed by any court before: whether Congress can authorize any and all domestic-law offenses to be tried in a military commission so long as the offenses are committed by an enemy belligerent in connection with hostilities?[27]<\/a>\u00a0 Specifically implicated in this case is the charge of inchoate conspiracy.<\/p>\n

This Article will first summarize the facts of the case, and then provide a detailed procedural history, to include the D.C. Circuit\u2019s decision to grant rehearing en banc for the second time in the case and to vacate its June 2015 order in the case. This Article will then provide a detailed analysis on where this case is going, why it is headed there, and the unique charging question implicated in the case.\u00a0 Lastly, this Article will conclude with a brief summary of the main points of the article.<\/p>\n

II. BACKGROUND<\/strong><\/p>\n

A. Facts<\/strong><\/p>\n

Ali Hamza Ahmad Sulliman al Bahlul (Bahlul) is a native of Yemen.[28]<\/a>\u00a0 \u201cIn the late 1990s, he traveled to Afghanistan to join al Qaeda.\u201d[29]<\/a>\u00a0 He completed al Qaeda military training and subsequently pledged his loyalty to bin Laden.[30]<\/a>\u00a0 Initially, \u201cBin Laden assigned Bahlul to work in in al Qaeda\u2019s media office.\u201d[31]<\/a>\u00a0 While working in the al Qaeda media office, Bahlul, at the direction of bin Laden, created a video celebrating the al Qaeda attack on the U.S.S. Cole that killed 17 American servicemen and wounded 39 others.[32]<\/a>\u00a0 This video, entitled \u201cThe Destruction of the American Destroyer Cole,\u201d is organized into three parts: \u201cThe Problem,\u201d[33]<\/a> \u201cThe Causes,\u201d[34]<\/a> and \u201cThe Solution.[35]<\/a>\u201d[36]<\/a>\u00a0 The video\u2019s purpose was to \u201cinflame the viewers and incite them to migrate to Afghanistan to train for, and actively participate in, violent jihad against the [U.S.].\u201d[37]<\/a>\u00a0 The video includes \u201cfootage of the attack, calls for jihad against the [U.S.] and propaganda blaming \u2018Western infidels\u2019 and complicit Middle Eastern regimes for Muslim suffering.\u201d[38]<\/a>\u00a0 Bahlul claimed the video \u201cwas al Qaeda\u2019s best propaganda video at the time, and that it \u2018was influential\u2019 and produced \u2018a good result\u2019 for al Qaeda.\u201d[39]<\/a><\/p>\n

In his own words, Bahlul described his importance to bin Laden and al Qaeda as the \u201cmedia man,\u201d<\/p>\n

I was bored when I was in Afghanistan and working on computers and papers and cameras and TVs; and I asked bin Laden for a martyrdom operation, suicide operation; but he refused.\u00a0 The reason why he refused was that he \u2013 that there are many other people other than you or so \u2013 the recruiting people through media gets you more people than suicidal attacks.\u00a0 Even in America, in every country in the world, media is that master ministry or department; and it has strategic goals, just like the United Nations and Internal Affairs and the Treasury Department; and God bless us, his speech is right.[40]<\/a><\/p>\n

Due to the success of the U.S.S. Cole propaganda video, bin Laden promoted Bahlul to his personal assistant and secretary for public relations.[41]<\/a>\u00a0 In this capacity, Bahul prepared public statements for bin Laden and \u201coperated and maintained data processing equipment.\u201d[42]<\/a> \u201cBahlul also arranged the loyalty oaths of two of the 9\/11 hijackers, Mohamed Atta and Ziad al Jarrah, and prepared their \u2018martyr wills.[43]<\/a>\u2019\u201d\u00a0 Bahlul attempted \u201cto participate in the 9\/11 attacks himself but bin Laden refused because he considered his media man too important to lose.\u201d[44]<\/a><\/p>\n

Leading up to the 9\/11 attacks, bin Laden ordered the al Qaeda Kandahar headquarters to be evacuated.[45]<\/a>\u00a0 \u201cBahlul assembled al Qaeda\u2019s media equipment and evacuated [] with bin Laden and other senior al Qaeda leaders.\u201d[46]<\/a>\u00a0 From a remote region in Afghanistan, bin Laden and Bahlul heard of the 9\/11 attacks via radio.[47]<\/a>\u00a0 At bin Laden\u2019s request, Bahlul researched and reported the attacks\u2019 economic effects.[48]<\/a><\/p>\n

After the 9\/11 attacks, \u201cBahlul fled to Pakistan\u201d where he was later captured in December 2001 and turned over to U.S. forces.\u201d[49]<\/a>\u00a0 In 2002, the U.S. government transferred Bahlul to the U.S. Naval Base at Guantanamo Bay, Cuba, \u201cwhere he has since been detained as an enemy combatant pursuant to the 2001 Authorization for Use of Military Force (AUMF).\u201d[50]<\/a>\u00a0 Following his capture, Bahlul voluntarily provided U.S. investigators information regarding his membership in al Qaeda, status as an officer, role in the production of the U.S.S. Cole video, and his continued belief in bin Laden\u2019s 1996 \u201cdeclaration of war.\u201d[51]<\/a>\u00a0 While in detention, Bahlul also wrote several letters to al Qaeda leaders \u201crenewing his pledge of bayat, restating his resolve to fight to the end, and reaffirming his belief that war is the only way to secure al Qaeda\u2019s objectives.\u201d[52]<\/a><\/p>\n

Since being detained at Guantanamo Bay, Bahlul has rejected the legitimacy of the U.S. Military Commissions and boycotted the proceedings against him.[53]<\/a>\u00a0 The boycott included rejecting the defense counsel provided to him and his desire to be absent from all sessions of the military commission, except the announcement of his sentence.[54]<\/a>\u00a0 Despite the waiver of his right to be present and of his right to counsel, \u201cthe military commission judge ruled that detailed defense counsel [], would continue to represent [Bahlul].[55]<\/a>\u00a0 On September 24, 2008, Bahlul did attend a session of the military commission with the intention that he would be present only if it \u201cwould not forfeit his boycott.\u201d[56]<\/a>\u00a0 Bahlul attended all later sessions of the military commission, pleading not guilty to all charges and specifications, including the conspiracy charge that is currently at issue on appeal.[57]<\/a>\u00a0 Besides administrative matters, Bahlul did not participate in the proceedings at all.[58]<\/a><\/p>\n

Importantly, he gave an unsworn statement during the sentencing phase of the commission.[59]<\/a>\u00a0 In this statement, Bahlul admitted his membership in al Qaeda, stated \u201cwe are the only ones on earth who will stand against you,\u201d blamed the U.S. for the deaths of innocent civilians over the past 50 years and for the 9\/11 attacks, and \u201cdeclared that al Qaeda does not submit to any Arab government or to international law, only to God.\u201d[60]<\/a>\u00a0 He also \u201cexpressed his willingness to die in prison and belief that al Qaeda will prevail in its war against the [U.S.].[61]<\/a><\/p>\n

B. Procedural History
\n<\/strong><\/p>\n

This case has a lengthy and confusing procedural history, so it is important to understand how this case arrived to where it is currently and what actually remains of the original conviction by the U.S. Military Commissions.<\/p>\n

a. U.S. Military Commissions<\/strong><\/p>\n

After being taken to Guantanamo Bay in 2002, \u201cthe President designated Bahlul eligible for trial by military commission\u201d in 2003[62]<\/a> \u00a0In 2004, \u201cmilitary prosecutors charged him with conspiracy to commit war crimes.\u201d[63]<\/a>\u00a0 Subsequently, \u201cBahlul\u2019s prosecution was stayed pending the outcome of\u201d Hamdan v. Rumsfeld<\/em>, in which another detainee challenged the lawfulness of the U.S. Military Commissions.[64]<\/a> \u00a0Due to the U.S. Supreme Court\u2019s ruling in Hamdan<\/em> that current military commission procedures were unconstitutional, \u201cCongress enacted the Military Commissions Act of 2006\u201d to cure the defects identified by the Hamdan <\/em>Court.[65]<\/a>\u00a0 Relevant in this case, the 2006 Military Commissions Act (MCA) \u201cspecifically enumerated 30 war crimes triable by military commission, and conferred jurisdiction on military commissions to try \u2018any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.\u2019\u201d[66]<\/a><\/p>\n

\u201cIn 2008, military prosecutors amended the charges against Bahlul to allege three of the offenses enumerated in the 2006 MCA based on the conduct summarized above- conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes.\u201d[67]<\/a>\u00a0 Specifically, \u201cthe conspiracy and solicitation charges alleged seven object crimes proscribed by the 2006 MCA: murder of protected persons, attacking civilians, attacking civilian objects, murder in violation of the law or war, destruction of property in violation of the law of war, terrorism and providing material support for terrorism.\u201d[68]<\/a>\u00a0 The military panel convicted Bahlul of all three offenses and sentenced him to life imprisonment, which the convening authority approved.[69]<\/a><\/p>\n

b. U.S. Court of Military Commission Review (CMCR)<\/strong><\/p>\n

The CMCR affirmed the convictions of the military commission, holding that: 1) the military commission properly exercised jurisdiction over Bahlul; 2) evidence was sufficient to establish the military commission\u2019s assertion of jurisdiction over the charged offenses; 3) conduct with which Bahlul was charged was punishable by military commission when committed; 4) the Government proved beyond a reasonable doubt that defendant provided material support or resources to an international terrorist organization engaged in hostilities against the U.S.; 5) conviction was not a violation of the Ex Post Facto Clause; 6) evidence was sufficient to support conviction for conspiracy; 7) evidence was sufficient to support conviction for solicitation; 8) Bahlul was not entitled to rights and protections provided by the freedom of speech provision of the First Amendment; and 9) MCA was not an unconstitutional bill of attainder.[70]<\/a><\/p>\n

c. 2014 U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) Opinion (Bahlul I & II<\/em>)<\/strong><\/p>\n

Bahlul appealed to the decision of the CMCR to the D.C. Circuit.[71]<\/a>\u00a0 On January 25, 2013, the D.C. Circuit vacated Bahlul\u2019s convictions based on the U.S Government\u2019s position that Hamdan v. U.S.[72]<\/strong><\/a><\/em> \u201crequires reversal of Bahlul\u2019s convictions by military commission.\u201d[73]<\/a>\u00a0 The court subsequently granted the U.S. Government\u2019s petition for rehearing en banc.[74]<\/a><\/p>\n

On July 14, 2014, the D.C. Circuit affirmed Bahlul\u2019s conspiracy conviction, vacated Bahlul\u2019s convictions for providing material support for terrorism and solicitation of others to commit war crimes, and remanded.[75]<\/a>\u00a0 Specifically the D.C. Circuit held that: 1) Bahlul forfeited arguments for consideration on appeal; 2) MCA unambiguously authorized Bahlul\u2019s prosecution based on conduct that occurred before enactment, overruling Hamdan v. U.S.<\/em>,[76]<\/a> 3) canon of constitutional avoidance was inapplicable; 4) Bahlul\u2019s conviction under 2006 MCA for conspiracy to commit war crimes for his part in 9\/11 terrorist attacks did not violate Ex Post Facto Clause on plain error review; 5) any Ex Post Facto Clause error in trying Bahlul under 2006 MCA on conspiracy to commit war crimes for his part in 9\/11 terrorist attacks was not plain; 6) conviction of Bahlul under 2006 MCA for providing material support to terrorism for his part in 9\/11 terrorist attacks plainly violated the Ex Post Facto Clause; and 7) conviction of Bahlul under 2006 MCA for solicitation of others to commit war crimes for his part in 9\/11 terrorist attacks violated the Ex Post Facto Clause.[77]<\/a> \u00a0While the court rejected Bahlul\u2019s ex post facto challenged to his conspiracy conviction, the court remanded \u201cthat conviction to the original panel of the [c]ourt for it to dispose of several remaining issues\u2019 raised by Bahlul.[78]<\/a><\/p>\n

d. 2015 D.C. Circuit Opinion (Bahlul III<\/em>)<\/strong><\/p>\n

On remand, the D.C. Circuit vacated Bahlul\u2019s inchoate conspiracy conviction, holding that 1) the claim that Congress encroached upon Article III judicial power by authorizing Executive Branch tribunals to try purely domestic crime of inchoate conspiracy was a structural objection that could not be forfeited and 2) conviction of Bahlul for inchoate conspiracy by law of war military commission violated separation of powers enshrined in Article III.[79]<\/a><\/p>\n

Interestingly, shortly after the June 12, 2015 decision by the court, the U.S. Government petitioned the D.C. Circuit for rehearing en banc again.[80]<\/a>\u00a0 In its petition, the U.S. Government argued that Congress did not violate Article III when it codified conspiracy as an offense triable by military commission.[81]<\/a>\u00a0 Specifically,<\/p>\n

[t]he Constitution confers on Congress extensive war powers that include not only the power to \u2018define and punish . . . offenses against the Law of Nations,\u2019 [\u2026] but also the power to declare war [\u2026] as well as the power to \u2018make all laws which shall be necessary and proper for carrying into execution the foregoing powers\u2019 [\u2026].\u201d\u00a0 \u201cCongress\u2019s authority to give military tribunals jurisdiction to try alien unlawful enemy combatants for conspiracies to commit war crimes derive from all these sources.[82]<\/a><\/p>\n

The U.S. Government also argued \u201cthe scope of Congress\u2019s authority to codify offenses triable by military commission is a question of exceptional importance.[83]<\/a>\u00a0 In the U.S. Government\u2019s petition, it focused on the broad sweeping ramifications of Bahlul III<\/em> and the implications for the court ultimately striking down \u201cthe approach that two Congresses and two Presidents have developed for the prosecution of unlawful enemy combatants in an ongoing armed conflict.\u201d[84]<\/a>\u00a0 The U.S Government argued \u201cthe panel\u2019s ruling [in Bahlul III<\/em>] restricts the authority of Congress and the President not simply over pre-2006 conduct in the current armed conflict, but over future combatants in future conflicts, in circumstances that we cannot foresee.\u201d[85]<\/a>\u00a0 Lastly, the U.S. Government focused on the potential effects Bahlul III<\/em> could have on the prosecution of pending military commissions.[86]<\/a>\u00a0 Essentially, Bahlul III<\/em> \u201crequires military commission charges to precisely match, element-by-element, an established international law offense.\u201d[87]<\/a>\u00a0 This \u201ccreates uncertainty about the constitutional validity of other MCA offense that do not precisely track war crimes recognized under international law.[88]<\/a><\/p>\n

The court granted the petition and also vacated its June 2015 judgment that vacated Bahlul\u2019s conspiracy conviction.[89]<\/a> \u00a0In addition to the issues raised by the U.S. Government, the court requested that the parties address two specific questions.[90]<\/a>\u00a0 First, \u201cthe standard of appellate review of Bahlul\u2019s conviction to commit war crimes\u201d and<\/p>\n

whether the Define and Punish Clause of the Article I of the Constitution gives Congress power to define as an offense against the law of nations, triable before a law-of-war military commission, a conspiracy to commit an offense against the law of nations, to wit, a conspiracy to commit war crimes; and whether the exercise of such power transgresses Article III of the Constitution.[91]<\/a><\/p>\n

Oral arguments were heard in the case on December 1, 2015, and an opinion is expected sometime in mid-2016.[92]<\/a><\/p>\n

III. ANALYSIS<\/strong><\/p>\n

Now that the question \u201cWhere It\u2019s Been\u201d has been answered, let us turn to the second question posed by this article, \u201cWhere It\u2019s Going.\u201d \u00a0For clarification, the intent of this article is not to predict or state which way the D.C. Circuit will rule in this case.\u00a0 There are a multitude of legal blogs, law reviews, and other commentary that covers that subject in depth.[93]<\/a> \u00a0The intent of this article is to demonstrate that, despite the D.C. Circuit rehearing of this case, evidence suggests that this case will likely, and indeed should, end up at the U.S. Supreme Court.\u00a0 This article will also present arguments as to why this would be the best avenue to resolve the looming Article III issue implicated in this case.<\/p>\n

A. Road to the U.S. Supreme Court<\/strong><\/p>\n

a. Far Reaching Effects<\/strong><\/p>\n

The effects of Bahlul III<\/em> could have been massive,[94]<\/a> which may be why the D.C. Circuit granted the petition for rehearing en banc.\u00a0 If left untouched, the decision would have essentially foreclosed any and all \u201cmilitary commissions not based upon an established international war crime.\u201d[95]<\/a>\u00a0 In addition, the opinion resulted in a significant impediment on the power of the President and Congress as the U.S. Government argued in its petition for rehearing.\u00a0 In one broad stroke, this case could have limited the military commission to solely the 9\/11 trial.[96]<\/a>\u00a0 It would have also given birth to a slew of post conviction challenges for convictions that have already been obtained.[97]<\/a> \u00a0Due to all these concerns, the proper avenue for a remedy in this case is a decision by the U.S. Supreme Court.\u00a0 Given the implications of a decision on the Article III issue and the resounding uncertainty surrounding the issue, the U.S. Supreme Court is the best tool to provide guidance and clear way forward for the commissions to the lower courts.<\/p>\n

The D.C. Circuit seemed to realize the gravity of its June 2015 decision when it granted the U.S. Government\u2019s petition for rehearing en banc and afforded itself an opportunity to limit its decision and to quell the drastic effects of its decision in Bahlul III<\/em>, even though it is not entirely clear why the court granted the petition for rehearing in the first place.[98]<\/a> \u00a0Although the D.C. Circuit has another opportunity for review, it is evident that this case or perhaps the Article III issue will likely still be on the road to the U.S. Supreme Court. \u00a0Given the gravity of ruling one way or the other on this issue, the D.C. Circuit will likely stray away from making another broad sweeping decision either for the U.S. Government or Bahlul.[99]<\/a>\u00a0 Leaving the question that everyone wants to be unanswered left unanswered will result in further ambiguity for pending and future military commissions.<\/p>\n

In reality, the D.C. Circuit will likely \u201capply plain error review and leave for another day de novo resolution of the Article III question or apply de novo review and rule either for al Bahlul or the government.\u201d[100]<\/a>\u00a0 Both responses will likely spur the Supreme Court to take the case if given the opportunity.[101]<\/a> Because the D.C. Circuit will likely duck the Article III question and the far-reaching effects of a decision on the Article III issue, the U.S. Supreme Court is the appropriate venue for such an issue to be addressed and should have been the sought after avenue in lieu of a rehearing by the D.C. Circuit.<\/p>\n

Furthermore, based on other cases stemming from the Guantanamo military commissions, it is highly likely that the Supreme Court would grant certiorari<\/em>.[102]<\/a>\u00a0 The U.S. Supreme Court has yet to deny a single petition for certiorari<\/em> by the U.S. Government arising out of the post-9\/11 counterterrorism or national security policy.[103]<\/a> A grant of certiorari<\/em> would be more likely if the D.C. Circuit \u201cholds that the military commissions may try non-international war crimes\u201d since such a holding would result in a significant expansion of Supreme Court precedent.[104]<\/a>\u00a0 Such a holding would also create \u201ctension with at least aspects of the four-Justice plurality opinion in Hamdan v. Rumsfeld<\/em>,\u201d[105]<\/a> further supporting the position that the U.S. Supreme Court would take the case if given the opportunity.<\/p>\n

b. Length of Time the Case Has Been Pending<\/strong><\/p>\n

Other considerations in this case are the amount of time it has been in limbo and the delays that result in other cases by this unresolved issue.\u00a0 By the time the D.C. Circuit issues its opinion in this case, the case will have been on the D.C. Circuit docket since 2012 and Bahlul will have been detained at Guantanamo since 2002. \u00a0The only certainty with the military commission cases is delay in reaching resolution.[106]<\/a> \u00a0Bahlul<\/em> is not different.\u00a0 Even with a decision by the D.C. Circuit, it is likely there still will not be a solid resolution to the Article III issue raised by the case, thus kicking the issue down the road to possibly be dealt with in another case. \u00a0By punting the issue, further delays and lengthy stays on the D.C. Circuit docket would be likely for Bahlul <\/em>and similar cases. \u00a0This situation highlights many critics\u2019 arguments that the U.S. military commission system has due process issues and results in unjust, lengthy detention of detainees.<\/p>\n

Another point that seems to be overlooked is the fact that Bahlul raised issues in Bahlul III<\/em> that the D.C. Circuit did not address because it decided the case based on the Article III violation.[107]<\/a>\u00a0 If a ruling is handed down in favor of the U.S. Government, then surely this case would find itself right back before a D.C. Circuit panel to decide the other issues raised by Bahlul.\u00a0 If the court rules in favor of Bahlul, then it is very likely the U.S. Government will seek certiorari<\/em>.\u00a0 Either way, Bahlul is facing continued detention and an immeasurable wait for an answer to the issues he raised on appeal.\u00a0 This certainly does not look promising for an already criticized judicial system like the U.S. Military Commissions.<\/p>\n

It seems evident that seeking certiorari<\/em> initially would have been more expeditious and straightforward than the route the U.S. Government has decided to take. Having Supreme Court precedent on this issue would not only alleviate future issues in other cases, but would potentially lesson the amount of time these cases stay pending before the lower courts. \u00a0Because of the posture and importance of a decision in this case, as a general answer to the question \u201cWhere It\u2019s Going,\u201d the answer is likely to the U.S. Supreme Court\u2026eventually.<\/p>\n

c. Charging Decision<\/strong><\/p>\n

As an aside, one area that is most intriguing about this case and that the U.S. Government has yet to address is the fact that all of this could have been avoided by simply charging Bahlul with a different crime:[108]<\/a> a crime that is expressly provided for by the MCA.\u00a0 The MCA provides criminal liability for persons who assist in the commission of completed war crimes.\u00a0 10 U.S.C. \u00a7 950q(1) states:<\/p>\n

Any person punishable under this chapter who \u2013<\/p>\n

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commissions;<\/p>\n

(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or<\/p>\n

(3) is a superior commander who, with regard to acts punishable by this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof,<\/p>\n

is principal.[109]<\/a><\/p>\n

This brings to light the question of why the U.S. Government did not charge a violation of Section 950q(1)? Why does the U.S. Government remain silent on this issue throughout the numerous briefs and oral arguments it has made before the D.C. Circuit?\u00a0 In his blog, Steve Vladeck points out that this perhaps highlights the U.S. Government\u2019s strategy in this case.[110]<\/a>\u00a0 He stated \u201cthat the government\u2019s concern is not whether it can prosecute detainees like al Bahlul in military commissions, but rather whether it can also prosecute in the commissions those who can\u2019t even be charged under that theory \u2013 and, thus, whose only crime is general affiliation with al Qaeda.\u201d[111]<\/a><\/p>\n

Ultimately, the charging decision in this case has been the catalyst to continued litigation and the ambiguity behind the charging decision is certainly strange.\u00a0 The U.S. Government will likely need to provide a solid answer to this question in order to further persuade the Court to rule in its favor, especially considering that every other military commission case decided by the Court has resulted in the Court siding with the detainee.<\/p>\n

IV. CONCLUSION<\/strong><\/p>\n

The road traveled by Bahlul<\/em> has been uncertain and lengthy.\u00a0 Unfortunately, there does not seem to be an end in sight.\u00a0 The D.C. Circuit\u2019s decision in Bahlul IV<\/em> will likely not be issued for at least six months, and, even then, depending on how the court rules, the case could continue to bounce around the D.C. Circuit because of other issues raised by Bahlul that have yet to be addressed.\u00a0 Even more concerning is the extreme likelihood that the Article III issue regarding the legitimacy of domestic-law offenses being tried in military commissions will not be resolved, leaving continued uncertainty in military commission practice. Because of the delays in this case and the potential far-reaching effects of any decision on the Article III issue, the appropriate venue for this case is the U.S. Supreme Court.\u00a0 A decision from the U.S. Supreme Court would provide a clearer way forward for the commissions, while hopefully providing a more expeditious, just process not only for Bahlul\u2019s case, but also for the other pending cases before the commission.<\/p>\n

 <\/p>\n

[1]<\/a> Samantha Arrington Sliney graduated cum laude<\/em> from North Carolina Central School of Law in May 2013.\u00a0 She is currently working towards her LL.M. in Homeland and National Security Law at Western Michigan University Thomas M. Cooley School of Law.\u00a0 She is licensed to practice law in Florida and the District of Columbia.\u00a0 She is currently employed as a Judge Advocate General (JAG) in the United States Air Force.\u00a0 This article was provided by Captain Sliney in her private capacity and does not reflect the position or opinion of the United States Air Force or the United States Government.<\/p>\n

[2]<\/a> Military Tribunals<\/em>, Constitutional Rights Foundation, http:\/\/www.crf-usa.org\/america-responds-to-terrorism\/military-tribunals.html (last visited Dec. 20, 2015).<\/p>\n

[3]<\/a> Id<\/em>.<\/p>\n

[4]<\/a> Id<\/em>.<\/p>\n

[5]<\/a> Id<\/em>.<\/p>\n

[6]<\/a> Id<\/em>.<\/p>\n

[7]<\/a> Id<\/em>.<\/p>\n

[8]<\/a> Guantanamo by the Numbers<\/em>, Human Rights First (Nov. 16, 2015), http:\/\/www.humanrightsfirst.org\/sites\/default\/files\/gtmo-by-the-numbers.pdf.<\/p>\n

[9]<\/a> Id<\/em>.<\/p>\n

[10]<\/a> Id<\/em>.<\/p>\n

[11]<\/a> Id<\/em>.<\/p>\n

[12]<\/a> Obama resurrects military trials for terror suspects<\/em>, CNN (May 15, 2009), http:\/\/www.cnn.com\/2009\/POLITICS\/05\/14\/obama.military.tribunal\/.<\/p>\n

[13]<\/a> Id<\/em>.<\/p>\n

[14]<\/a> Id<\/em>.<\/p>\n

[15]<\/a> Id<\/em>.<\/p>\n

[16]<\/a> Id<\/em>.<\/p>\n

[17]<\/a>President Barrack H. Obama, Remarks by the President on Plan to Close the Prison at Guantanamo Bay<\/em>, The White House Office of the Press Secretary (Feb. 23, 2016, 10:30 AM), https:\/\/www.whitehouse.gov\/the-press-office\/2016\/02\/23\/remarks-president-plan-close-prison-guantanamo-bay.<\/p>\n

[18]<\/a> Id<\/em>.<\/p>\n

[19]<\/a> Id.<\/em><\/p>\n

[20]<\/a> Id.<\/em><\/p>\n

[21]<\/a> Supra <\/em>note 8.<\/p>\n

[22]<\/a> Id<\/em>.<\/p>\n

[23]<\/a> Id<\/em>.<\/p>\n

[24]<\/a> Id<\/em>.<\/p>\n

[25]<\/a> Id<\/em>.<\/p>\n

[26]<\/a> Id<\/em>.<\/p>\n

[27]<\/a> Steve Vladeck, Counting to Six in Al Bahlul IV<\/em>, Just Security (Dec. 1, 2015, 1:28 PM), https:\/\/www.justsecurity.org\/28042\/counting-al-bahlul-iv\/.<\/p>\n

[28]<\/a> U.S. v. Al Bahlul<\/em>, 767 F.3d 1, 5 (D.C. Cir. 2014).<\/p>\n

[29]<\/a> Id<\/em>.<\/p>\n

[30]<\/a> Id<\/em>.<\/p>\n

[31]<\/a> Id<\/em>.<\/p>\n

[32]<\/a> Id<\/em>.<\/p>\n

[33]<\/a> U.S. v. Al Bahlul<\/em>, 820 F.Supp.2d 1141, 1161 (U.S.C.M.C.R. 2011) (\u201c\u2018The Problem\u2019 is appellant\u2019s portrayal of the Muslim nation or \u201cUmmah\u201d and includes emotive footage of purported Muslims, particularly women and children, being mistreated and killed.\u00a0 It also depicts the presence of U.S. diplomats and troops in the Middle East as part of \u2018The Problem.\u2019\u201d).<\/p>\n

[34]<\/a> Id<\/em>. (\u201cthe video identifies \u2018The Causes\u2019 as diplomatic relationships between the United States and regional leaders and an alliance between the Unites States and Israel.\u201d).<\/p>\n

[35]<\/a> Id<\/em>. at 1161-62(\u201c \u2018The Solution\u2019 includes incensing images of violence against women and children, interspersed with images of world leaders including American Presidents laughing.\u00a0 The horrific and infuriating images shown repeatedly with religious chanting and \u2018a cappella\u2019 singing, known as \u2018anasheed,\u2019 audible in the background to increase the emotional impact of the video.\u00a0 The anasheed extol the virtues of martyrdom (suicide bombings), of sacrifice, and of combat, somberly chanting lyrics such as \u2018revolt, revolt . . . with blood, with blood.\u2019\u00a0 The anasheed instructs the listener to trade blood for blood and destruction for destruction, while showing images of violence against women and children dying, then images of recruits training in al Qaeda camps and terrorist attacks on Americans, and finally joyful Muslims celebrating in the streets.\u00a0 After highly emotions scenes of Muslims suffering attributed to \u2018Western infidels\u2019 and complicit Middle Eastern regimes, the video asserts violent jihad as the solution.\u00a0 It calls on viewers to come to Afghanistan to train for, and actively participate in, violent jihad against the United States.\u00a0 During training camp scenes, bin Laden says, \u2018the outcome of this training is jihad for the cause of God. . . . [T] hey are waiting for our youths to annihilate American and Israel.\u2019\u00a0 He continues, \u2018[t]he only way to eradicate the humiliation and disbelief that has overcome the Land of Islam is jihad, bullets, and martyrdom operations.\u2019\u00a0 Towards the end of the video, bin Laden declares, \u2018 [w]e are terrorists, and terror is an obligation in the Book of God.\u00a0 Let the West and East know that we are terrorists and we strike fear.\u201d).<\/p>\n

[36]<\/a> U.S. v. Al Bahlul<\/em>, 820 F.Supp.2d 1141, 1160 (U.S.C.M.C.R. 2011).<\/p>\n

[37]<\/a> Supra <\/em>note 24 at 5.<\/p>\n

[38]<\/a> Id<\/em>. at 5-6.<\/p>\n

[39]<\/a> 820 F.Supp.2d at 1161.<\/p>\n

[40]<\/a> 820 F.Supp.2d at 1162.<\/p>\n

[41]<\/a> Supra <\/em>note 24 at 6.<\/p>\n

[42]<\/a> 820 F.Supp.2d at 1162.<\/p>\n

[43]<\/a> Supra <\/em>note 24 at 6. (Martyr wills are \u201cpropaganda declarations documenting al Qaeda\u2019s role in the attacks.\u201d).<\/p>\n

[44]<\/a> Id<\/em>.<\/p>\n

[45]<\/a> 820 F.Supp.2d at 1162.<\/p>\n

[46]<\/a> Supra <\/em>note 24 at 6.<\/p>\n

[47]<\/a> Id<\/em>.<\/p>\n

[48]<\/a> Id<\/em>.; 820 F.Supp.2d at 1162.<\/p>\n

[49]<\/a> Supra <\/em>note 24 at 6.<\/p>\n

[50]<\/a> Id<\/em>.<\/p>\n

[51]<\/a> 820 F.Supp.2d at 1162.<\/p>\n

[52]<\/a> Id<\/em>.<\/p>\n

[53]<\/a> Id<\/em>. at 1163.<\/p>\n

[54]<\/a> Id<\/em>.<\/p>\n

[55]<\/a> Id<\/em>.<\/p>\n

[56]<\/a> Id<\/em>.<\/p>\n

[57]<\/a> Id<\/em>.<\/p>\n

[58]<\/a> Id<\/em>.<\/p>\n

[59]<\/a> 820 F.Supp.2d at 1163.<\/p>\n

[60]<\/a> Id<\/em>. at 1163-64.<\/p>\n

[61]<\/a> Id<\/em>. at 1164.<\/p>\n

[62]<\/a> Supra<\/em> note 24 at 6.<\/p>\n

[63]<\/a> Id<\/em>.<\/p>\n

[64]<\/a> Id<\/em>.; 548 U.S. 557, 613-35 (2006).<\/p>\n

[65]<\/a> Id<\/em>.; 548 U.S. at 613-35.<\/p>\n

[66]<\/a> Id<\/em>.; 10 U.S.C. \u00a7 948d(a), 950t \u2013 950v (2006).<\/p>\n

[67]<\/a> Id<\/em>.; See<\/em> 10 U.S.C. \u00a7 950u, 950v(b)(25), 950v(b)28 (2006).<\/p>\n

[68]<\/a> Id<\/em>.; See<\/em> 10 U.S.C. \u00a7 950v(b)(1)-(3), (15)-(16), (24)-(25) (2006).<\/p>\n

[69]<\/a> Id<\/em>. at 7-8.<\/p>\n

[70]<\/a> 820 F.Supp.2d 1141.<\/p>\n

[71]<\/a> Supra <\/em>note 24.<\/p>\n

[72]<\/a> 696 F.3d 1238 (2012).<\/p>\n

[73]<\/a> Order Granting Vacation of Conviction, 2013 WL 297726, No. 11-1324 (2013).<\/p>\n

[74]<\/a> Supra<\/em> note 24.<\/p>\n

[75]<\/a> Id<\/em>.<\/p>\n

[76]<\/a> Supra<\/em> note 69.<\/p>\n

[77]<\/a> Id<\/em>.<\/p>\n

[78]<\/a> Id<\/em>. at 4.<\/p>\n

[79]<\/a> Al Bahlul v. U.S<\/em>, 792 F.3d 1 (D.C. Cir. 2015).<\/p>\n

[80]<\/a> Order Granting Rehearing En Banc, No. 11-1324 (2015), available at<\/em> https:\/\/www.justsecurity.org\/wp-content\/uploads\/sites\/82\/2015\/09\/Bahlul-en-banc-order-Sept2015.pdf.<\/p>\n

[81]<\/a> Petition of the U.S. for Rehearing En Banc, at 8-13, Al Bahlul v. U.S.<\/em>, 792 F.3d 1 (2015) No. 11-1324, available at<\/em> https:\/\/www.justsecurity.org\/wp-content\/uploads\/sites\/82\/2015\/07\/Petition-for-Rehearing-En-Banc-27-July-2015.pdf.<\/p>\n

[82]<\/a> Id<\/em>. at 9.<\/p>\n

[83]<\/a> Id<\/em>. at 13-15.<\/p>\n

[84]<\/a> Id<\/em>.<\/p>\n

[85]<\/a> Id<\/em>.<\/p>\n

[86]<\/a> Id<\/em>.<\/p>\n

[87]<\/a> Id<\/em>.<\/p>\n

[88]<\/a> Id<\/em>.<\/p>\n

[89]<\/a>\u00a0 Supra <\/em>note 77.<\/p>\n

[90]<\/a> Id<\/em>.<\/p>\n

[91]<\/a> Supra<\/em>, note 77.<\/p>\n

[92]<\/a> Steve Vladeck, D.C. Circuit Grants Rehearing En Banc in al Bahlul (and Highlights My Poor Math Skills)<\/em>, Just Security (Sept. 25, 2015, 4:13 PM), https:\/\/www.justsecurity.org\/26362\/dc-circuit-grants-rehearing-en-banc-al-bahlul\/.<\/p>\n

[93]<\/a> See<\/em> Peter Margulies, Al Bahlul\u2019s Commission Conviction and the Pragmatic Jurisprudence of Article III<\/em>, Just Security (Nov. 23, 2015 11:30 AM), https:\/\/www.justsecurity.org\/27824\/al-bahluls-commission-conviction-pragmatic-jurisprudence-article-iii\/; David Glazier, No War Crime? No War Crimes Trial!<\/em>, Just Security (Nov. 24, 2015, 2:00 PM), https:\/\/www.justsecurity.org\/27884\/war-crime-war-crimes-trial\/; David Ohlin, Al-Bahlul\u2019s of his Conspiracy conviction go to the Supreme Court?, Opinio Juris (June 15, 2015, 2:00 PM), http:\/\/opiniojuris.org\/2015\/06\/15\/will-al-bahluls-appeal-of-his-conspiracy-conviction-go-to-the-supreme-court\/; Steve Vladeck, What al Bahlul Says, and What It Means<\/em>, Just Security (June 12, 2015, 10:54 AM), https:\/\/www.justsecurity.org\/23788\/al-bahlul-says-means\/; Peter Margulies, Second-Guessing Congress on Military Commissions<\/em>, Lawfare (June 14, 2015, 2:00 PM), https:\/\/lawfareblog.com\/second-guessing-congress-military-commissions.<\/p>\n

[94]<\/a> Id<\/em>.<\/p>\n

[95]<\/a> Id<\/em>.; Jonathan Hafetz, Al Bahlul and the Risks of Legitimating Departures from Article II Jurisdiction<\/em>, Just Security (Nov. 25, 2015, 9:55 AM), https:\/\/www.justsecurity.org\/27905\/al-bahlul-risks-legitimating-departures-article-iii-jurisdiction\/; James Benjamin and Rita Siemion, We Don\u2019t Need to Broaden Military Commissions\u2019 Jurisdiction<\/em>, Just Security (Nov. 30, 2015, 3:45 PM), https:\/\/www.justsecurity.org\/28000\/broaden-military-commissions-jurisdiction\/.<\/p>\n

[96]<\/a> Id<\/em>.<\/p>\n

[97]<\/a> Id<\/em>.<\/p>\n

[98]<\/a> Steve Vladeck, Why Al Bahlul IV Won\u2019t Matter<\/em>, Just Security (Nov. 24, 2015, 11:00 AM), https:\/\/www.justsecurity.org\/27879\/al-bahlul-iv-matter\/.<\/p>\n

[99]<\/a> Id<\/em>.; Marty Lederman, Reflections from the en banc al Bahlul oral argument<\/em>, Just Security (Dec. 1, 2015, 1:07 PM), https:\/\/www.justsecurity.org\/28037\/reflections-en-banc-al-bahlul-oral-argument\/; Supra<\/em> note 25.<\/p>\n

[100]<\/a> Id<\/em>.<\/p>\n

[101]<\/a> Id<\/em>.<\/p>\n

[102]<\/a> Id.<\/em><\/p>\n

[103]<\/a> Id<\/em>.<\/p>\n

[104]<\/a> Id<\/em>.<\/p>\n

[105]<\/a> Id<\/em>.<\/p>\n

[106]<\/a> Supra<\/em> note 89.<\/p>\n

[107]<\/a> Supra<\/em> note 76.<\/p>\n

[108]<\/a> Lederman, supra<\/em> note 100.<\/p>\n

[109]<\/a> 10 U.S.C. \u00a7 950q(1) (2006).<\/p>\n

[110]<\/a> Steve Vladeck, The Government\u2019s Overstated Rehearing Petition in al Bahlul<\/em>, Just Security (July 30, 2015, 11:05 AM), https:\/\/www.justsecurity.org\/24985\/governments-overstated-rehearing-petition-al-bahlul\/.<\/p>\n

[111]<\/a> Id<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

On November 13, 2001 then-President George W. Bush issued a military order that would forever be remembered. His military order \u201ccalled for the [S]ecretary of [D]efense to detain non-citizens accused of international terrorism.\u201d Specially, the order applied to members of al Qaeda, and \u201call those who have engaged in, aided, or conspired to commit international terrorist acts against the United States or its citizens.\u201d The Secretary of Defense \u201c[was] charged with establishing military tribunals (also called military commissions) to conduct trials of non-citizens accused of terrorism either in the United States or in other parts of the world.\u201d Then-President Bush\u2019s military order created the United States (U.S.) Military Commissions that have been the center of continued national and international criticism.
\nPhoto courtesy of Wikimedia 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