Al Bahlul v. United States

• Citation: 840 F.3d 757
• Decision Date: 20 October 2016
• Docket Number: No. 11–1324,11–1324
• Parties: Ali Hamza Ahmad Suliman al BAHLUL, Petitioner v. UNITED STATES of America, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

840 F.3d 757

Ali Hamza Ahmad Suliman al BAHLUL, Petitioner

v.UNITED STATES of America, Respondent

No. 11–1324

United States Court of Appeals, District of Columbia Circuit.

Argued December 1, 2015

Decided October 20, 2016

Rehearing Denied November 28, 2016

Michel Paradis, Counsel, Office of the Chief Defense Counsel, argued the cause for petitioner. With him on the briefs were Mary R. McCormick, Kansas City, MO, and Todd E. Pierce, Counsel.

David Weissbrodt and William J. Aceves were on the brief for amici curiae International Law Scholars in support of petitioner.

J. Douglas Richards, New York, NY, was on the brief for amicus curiae National Institute of Military Justice in support of petitioner.

Robert Barton was on the brief for amicus curiae Professor David Glazier in support of petitioner.

Ian Heath Gershengorn, Principal Deputy Solicitor General, U.S. Department of Justice, argued the cause for respondent. On the brief were Steven M. Dunne, Chief, Appellate Unit, and John F. De Pue and Joseph Palmer, Attorneys.

James A. Schoettler Jr. was on the brief for amici curiae Former Government Officials, Former Military Lawyers, and Scholars of National Security Law in support of respondent.

Richard A. Samp was on the brief for amici curiae John D. Altenburg, Maj. Gen., U.S. Army (Ret.), et al. in support of respondent.

Before: Garland,^* Chief Judge, and

Henderson, Rogers, Tatel, Brown, Griffith, Kavanaugh, Srinivasan,^** Millett, Pillard, and Wilkins, Circuit Judges.

Concurring opinion filed by Circuit Judge Henderson.

Concurring opinion filed by Circuit Judge Kavanaugh, with whom Circuit Judges Brown and Griffith join.

Concurring opinion filed by Circuit Judge Millett.

Concurring opinion filed by Circuit Judge Wilkins.

Joint Dissenting opinion filed by Circuit Judges Rogers, Tatel, and Pillard.

Per Curiam:

Bahlul is a member of al Qaeda who assisted Osama bin Laden in planning the September 11, 2001, attacks on the United States. Bahlul was convicted by a U.S. military commission of the offense of conspiracy to commit war crimes, among other offenses. The U.S. Court of Military Commission Review affirmed Bahlul's conviction.

In a prior en banc decision, we recounted the facts and considered Bahlul's Ex Post Facto Clause objection to the conspiracy conviction. Applying plain error review, we concluded that the Ex Post Facto Clause did not preclude the conspiracy charge against Bahlul. See Al Bahlul v. United States , 767 F.3d 1 (D.C. Cir. 2014) (en banc).

In this en banc case, Bahlul argues that Articles I and III of the Constitution bar Congress from making conspiracy an offense triable by military commission, because conspiracy is not an offense under the international law of war.

We affirm the judgment of the U.S. Court of Military Commission Review upholding Bahlul's conspiracy conviction. Six judges—Judges Henderson, Brown, Griffith, Kavanaugh, Millett, and Wilkins—have voted to affirm. Three judges—Judges Rogers, Tatel, and Pillard—dissent.

Of the six-judge majority, four judges (Judges Henderson, Brown, Griffith, and Kavanaugh) would affirm because they conclude that, consistent with Articles I and III of the Constitution, Congress may make conspiracy to commit war crimes an offense triable by military commission. They would uphold Bahlul's conspiracy conviction on that basis.

Judge Millett would apply plain error review and affirm Bahlul's conviction under that standard of review. She would not reach the question of whether Congress may make inchoate conspiracy an offense triable by military commission.

Judge Wilkins would affirm because he concludes that the particular features of Bahlul's conviction demonstrate that Bahlul was not convicted of an inchoate conspiracy offense. He further concludes that Bahlul's conviction complies with the Constitution because the particular features of Bahlul's conviction have sufficient roots in international law. He therefore would not reach the question of whether Congress may make inchoate conspiracy an offense triable by military commission.

Judges Rogers, Tatel, and Pillard have filed a Joint Dissent. They conclude that Article III of the Constitution bars Congress from making inchoate conspiracy an offense triable by a law-of-war military commission.

Bahlul has also raised First Amendment and Equal Protection challenges to his conviction. The Court rejects those challenges. See Kavanaugh Concurring Op. at 770 n.12; Millett Concurring Op. at 775, 796–97; Wilkins Concurring Op. at 804. The Joint Dissent neither reaches those claims nor adopts the above characterization of the facts.

* * *

We affirm the judgment of the U.S. Court of Military Commission Review upholding Bahlul's conspiracy conviction.

So ordered.

Karen LeCraft Henderson, Circuit Judge, concurring:

I join the Court's judgment affirming Bahlul's conspiracy conviction. I do so for the reasons stated in my dissent in Al Bahlul v. United States , 792 F.3d 1, 27–72 (D.C. Cir. 2015) (since vacated). I incorporate by reference thereto that previously published opinion as my concurrence here.

Kavanaugh, Circuit Judge, with whom Circuit Judges Brown and Griffith join, concurring:

Pursuant to congressional authorization, Presidents throughout U.S. history have employed military commissions to try enemy war criminals for conspiracy to commit war crimes. That history includes the two most significant U.S. military commission trials: the 1865 military commission trial of the Confederate conspirators who plotted to kill President Lincoln and the 1942 military commission trial of the Nazi conspirators who secretly entered the United States during World War II and planned to attack U.S. infrastructure and military facilities.

In the wake of al Qaeda's attacks on the United States on September 11, 2001, Congress has twice passed laws (signed by President Bush in 2006 and President Obama in 2009) expressly reaffirming that military commissions may try unlawful enemy combatants for conspiracy to commit war crimes. Pursuant to those express congressional authorizations, President Bush and later President Obama have employed military commissions to try alleged al Qaeda war criminals for the offense of conspiracy to commit war crimes. Indeed, Khalid Sheikh Mohammad, one of the alleged masterminds of the September 11th attacks, faces a conspiracy charge in his pending military commission trial. Several other al Qaeda members likewise have been charged with conspiracy before U.S. military commissions.

Bahlul is an al Qaeda member who worked closely with Osama bin Laden in plotting al Qaeda's September 11th attacks on the United States. In December 2001, Bahlul was captured in Pakistan. In 2008, he was tried and convicted before a U.S. military commission of conspiracy to commit war crimes.

Citing Article I and Article III of the Constitution, Bahlul argues that Congress may establish military commissions only for offenses under the international law of war. Bahlul further argues (and the Government concedes) that conspiracy is not an offense under the international law of war. Therefore, Bahlul contends that he may not be tried for conspiracy before a U.S. military commission.

On its face, Bahlul's argument is extraordinary. It would incorporate international law into the U.S. Constitution as a judicially enforceable constraint on Congress and the President. As a matter of U.S. constitutional law, the wartime decisions of Congress and the President to try unlawful enemy combatants before military commissions would be subject to the dictates of foreign nations and the international community, as embodied in international law.

The Government responds that, under the Constitution, Congress may establish military commissions to try, at a minimum, (i) international law of war offenses and (ii) offenses that are not international law of war offenses but have historically been tried by U.S. military commissions. As the Government points out, conspiracy has historically been tried by U.S. military commissions.

This case therefore raises one central legal question: Under the U.S. Constitution, may Congress establish military commissions to try unlawful enemy combatants for the offense of conspiracy to commit war crimes, even if conspiracy is not an offense under the international law of war? The answer is yes. We know that from the text and original understanding of the Constitution; the structure of the Constitution; landmark Supreme Court precedent; longstanding congressional practice, as reflected in venerable and contemporary federal statutes; and deeply rooted Executive Branch practice, from the 1800s to the present.¹

I

We first address the Article I issue. Bahlul acknowledges that Congress possesses authority under Article I to establish military commissions to try war crimes. But he contends that military commissions may try only international law of war offenses. Bahlul further argues (and the Government concedes) that conspiracy is not an international law of war offense. Therefore, Bahlul says he may not be tried by military commission for conspiracy.

Contrary to Bahlul's argument, Article I of the Constitution does not impose international law as a limit on Congress's authority to make offenses triable by military commission.² That is apparent from five sources of law: the text and original understanding of Article I, the overall structure of the Constitution, landmark Supreme Court precedent, longstanding federal statutes, and deeply rooted U.S. military commission practice.

First , the text and original understanding of Article I demonstrate that international law does not impose a limit on Congress's authority to make offenses triable by military commission.

The premise of Bahlul's Article I argument is that Congress's sole source of constitutional authority to make offenses triable by military commission is the Define and Punish Clause of Article I. That Clause grants Congress authority to “define and punish ... Offences against the Law of Nations.” U.S....