JURIST Guest Columnist Shane Kadidal of the Center for Constitutional Rights argues that even if the government’s petition for en banc review of al Bahlul v. US fails, it will nonetheless succeed in maintaining the political status quo of the Obama administration…

There are, basically, only two ways to leave Guantanamo today: in a coffin, or by pleading guilty in a military commission and serving out your sentence. Since this gives most detainees a shared incentive with the military prosecutors to arrange for plea-bargained convictions, it might surprise readers to hear that hardly any cases are moving forward in the commissions today. That is largely because of two rulings from the US Court of Appeals for the District of Columbia Circuit, Hamdan v. US (Hamdan II) and al Bahlul v. US. Those opinions reversed convictions for providing material support for terrorism (Hamdan II) and conspiracy (Bahlul) in the military commissions created by Congress in the Military Commissions Act of 2006 [PDF] (MCA).

The Hamdan II court held that a material support prosecution under the 2006 statute for conduct that took place before 2006 would raise serious constitutional questions under the ex post facto clause prohibiting the government from retroactively criminalizing actions. Hamdan was detained, like nearly every Guantanamo detainee, well before 2006. Rather than deciding the constitutional question, the Hamdan II panel avoided the issue by basing their ruling on statutory grounds: Congress, the Court said, did not intend to retroactively criminalize anything that was not already a crime under the customary international law of war. Since material support was not an acknowledged crime under the international law of war (something even the government conceded), Hamdan’s conviction had to be overturned.

The government did not appeal, perhaps in part because Hamdan had already been released, having served out his sentence. Eventually, though, stories surfaced claiming a deep rift between the US Department of Justice (DOJ) (which supposedly wanted to appeal) and the military prosecutors (who, apparently, thought the DC Circuit was correct).

A second opportunity arose when Ali al Bahlul’s appeal came to the circuit court. Al Bahlul had been sentenced to life on conspiracy charges related to his role as a propagandist for al Qaeda. The government filed a curious brief [PDF] on appeal, noting that if Hamdan II were correct, then al Bahlul’s conspiracy conviction must fall as well, since the Hamdan II panel decision was precedent binding all subsequent panels in the DC Circuit. Conspiracy, like material support, was also concededly not a violation of the international law of war. However, the government reserved the right to seek reconsideration of whether the Hamdan II panel was correct before the full DC Circuit, sitting en banc, and, perhaps, subsequently before the US Supreme Court as well.

The panel in al Bahlul’s appeal ultimately vacated his conviction. The impact of the decisions in Hamdan II and al Bahlul, should they stand, will be great: according to my informal count, material support or conspiracy have been included as charges in 28 of the 30 charge sheets filed in the military commissions since the MCA passed. Remove those generic offenses and it becomes increasingly difficult for the relatively non-culpable mass of detainees, not cleared for release by the Obama administration, to find something plausible to plead guilty to. Without something to plead guilty to, these detainees will simply sit indefinitely in detention, as it has become practically impossible [PDF] to win release through habeas corpus. Furthermore, the politics of bringing detainees to the US for trial have foreclosed federal criminal courts as a possible option.

What is the government seeking to appeal in its petition [PDF] for en banc review in al Bahlul? Curiously, it’s not the notion that conspiracy was a recognized war crime under international law. As with material support, the government does not even argue that conspiracy is an international war crime. Instead, the en banc petition argues that the Hamdan II panel was wrong to look exclusively to the international law of war. Instead, the DOJ claims there are domestic precedents for prosecuting conspiracy in military commissions, mostly during the US Civil War. While the petition states this “traditional practice is especially clear regarding conspiracy,” one imagines there is no such early precedent for the relatively recent concept of material support. Perhaps, this provides intellectual consistency to the DOJ’s decision to pursue en banc review in al Bahlul but not in Hamdan II.

The question at issue is whether the courts should decide whether conspiracy was an established war crime under the customary international law of war, or whether it is enough to simply find that conspiracy was established as a war crime under the “domestic common law” of war — the past practices of only American military commissions. The Hamdan II panel gave only the briefest treatment to this question of international and domestic law because it thought the question conclusively decided in favor of international law by the Supreme Court in Hamdan v. Rumsfeld (Hamdan I).

The issue certainly appeals to those in Congress who oppose all attempts by American courts to apply anything calling itself “international” law. Will it appeal to anyone in a black robe? For insight we need to turn to the distasteful business of counting votes. On the DC Circuit, we know that Judges Kavanaugh, Ginsburg and Sentelle — the panelists in Hamdan II — will not agree with the government. Justice Douglas Ginsburg was a senior judge when the panel sat and Sentelle has since taken senior status, removing him from the en banc voting pool. Their opinion will certainly carry weight with their colleagues. Judges Randolph and Silberman, who have written many vituperative opinions in Guantanamo cases since Boumediene, also have senior status and will not vote. Of the six remaining active-duty judges, two are liberals (Tatel, Rogers) and one a moderate Democrat (Garland). The DOJ would need to win one of their votes to get to an en banc hearing. This seems unlikely.

It is worth noting that there are four vacancies on the court at the current time. However, all four are likely to remain open for some time. President Barack Obama has made only two nominations, one of whom (Caitlin Halligan) was successfully filibustered earlier this month. The Democrats are apparently unwilling to push back against the stonewalling, content to see what happens with the other nominee, Sri Srinivasan — a lawyer in President George W. Bush’s solicitor general’s office who appeared in many national security cases — rather than pushing a full complement of four nominees before the Senate. Even if Srinivasan could make it onto the bench in time, a 4-4 split would not be enough to give the government en banc review — a flat-out majority is required.

What about the Supreme Court? Hamdan had an appeal go there already, in a case challenging the military commissions Bush created by executive order. In that 2006 decision, Hamdan I, the Court overturned the commissions system because it was not authorized by statute. Congress responded by passing the MCA which created the current commissions system. There was an additional issue that the Court almost decided — whether conspiracy was a traditional war crime triable by commission. Four of the eight justices voting in Hamdan I (there was one recusal, Chief Justice John Roberts) held that conspiracy was not a crime recognized under the relevant common law of war: common law of war offenses needed to have “clear and unequivocal” precedent and the international precedent was not there — most pointedly at Nuremburg. Even as to domestic past practice, the Court said that “[t]he crime of ‘conspiracy’ has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction” such as that originating with military governance of an area under martial law.

Why, then, try to push the same issue before the Court now? Well, those four justices were Justices John Paul Stevens, David Souter, Stephen Breyer and Ginsburg and the former two are no longer on the Court. Their replacements — like every new justice since Stevens joined the court in 1975, except Ginsburg — have been more conservative than those they replaced. Nonetheless, it still seems unlikely that Justices Sonia Sotomayor or Elena Kagan will endorse the DOJ’s position.

That leaves Justice Anthony Kennedy. His concurrence in Hamdan I, the deciding fifth vote, found it premature to reach the issue of whether conspiracy was an offense under the common law of war. Writing only for himself in Part III of his concurrence in Hamdan I, he reserved the issue. Earlier in his opinion, Kennedy noted that the “law of war … derives from ‘rules and precepts of the law of nations’; it is the body of international law governing armed conflict.” That’s hardly hopeful language for the government on the one issue on appeal in al Bahlul: whether international or domestic common law is the touchstone for determining whether conspiracy was a recognized war crime.

The only grounds for optimism for the government is that Kennedy, in refusing to reach the conspiracy issue, noted that “Congress may choose to provide further guidance” regarding the “validity of the conspiracy charge,” and that “Congress, not the Court, is the branch in the better position” to make that determination. Perhaps the government is thinking Kennedy will find Congress’ codification of conspiracy as an offense in the MCA (passed four months after the Hamdan I decision) adds weight to the government’s position. Kennedy also said the task of establishing offenses left to Congress was a “sensitive task of establishing a principle not inconsistent with the national interest or international justice[,]” (emphasis added). Again, that hardly seems grounds to think Kennedy will find the “domestic common law of war” argument persuasive.

The government’s appellate strategy is a long shot. It was certainly not forced by the need to keep al Bahlul in custody. Al Bahlul has shown no inclination to work with lawyers so far. Nothing in the public record would lead observers to expect that he would pursue a habeas petition. He seems to be facing life detention at Guantanamo whether or not his conviction stands.

The political status quo is furthered by taking such a long-shot appeal. By drawing this issue out through the appellate process, the administration will be able to continue asserting that commissions are a viable forum for trying Guantanamo detainees. Instead of bringing the political fight to the demagogues in Congress — and elsewhere — who opposed civilian court trials for Guantanamo detainees, the president can claim that he is waiting for the Supreme Court to change the Hamdan II ruling so that he can move cases forward offshore. Meanwhile, only the existing prosecutions of the 9/11 and Cole plotters will move forward — both cases involve charges other than material support and unadorned conspiracy — distracting from the fact that nothing is happening for the other 28 remaining detainees designated for prosecution. Maintaining the status quo has been the central principle of Obama’s counterterrorism strategy. Unlikely as it is to succeed, the en banc petition in al Bahlul would fit that pattern.

Shane Kadidal is senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a graduate of the Yale Law School and currently works as an adjunct professor at the University of Michigan Law School.

Suggested citation: Shane Kadidal The Government is Using al Bahlul v. US to Maintain the Political Status Quo, JURIST – Hotline, Mar. 21, 2013, http://jurist.org/hotline/2013/03/shane-kadidal-guantanamo-bahlul.php