Ali Hamza Ahmad al Bahlul v. United States
2015 U.S. App. LEXIS 9868, 792 F.3d 1, 416 U.S. App. D.C. 340 (2015)
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Rule of Law:
Under Article III of the Constitution, the jurisdiction of law of war military commissions is limited to trying offenses recognized as violations of the international law of war. Congress may not expand this jurisdiction to include purely domestic crimes, such as inchoate conspiracy, as doing so unconstitutionally encroaches upon the judicial power vested exclusively in Article III courts.
Facts:
- Ali Hamza Ahmad Suliman al Bahlul traveled to Afghanistan with the intent to join al Qaeda.
- He underwent military-style training at an al Qaeda-sponsored training camp.
- Bahlul pledged an oath of fealty, or "bayat," directly to Osama bin Laden and became a member of al Qaeda.
- He served as bin Laden's media secretary, producing propaganda materials, including a video about the bombing of the USS Cole.
- Bahlul arranged for 9/11 hijackers Muhammed Atta and Ziad al Jarrah to pledge their own oaths of fealty to bin Laden.
- He prepared the so-called "martyr wills" for Atta and Jarrah in preparation for the September 11, 2001 attacks.
- At bin Laden's direction, Bahlul researched the economic impact of the 9/11 attacks on the United States and reported his findings.
Procedural Posture:
- A law of war military commission convened at Guantanamo Bay, Cuba, found Ali Hamza Ahmad Suliman al Bahlul guilty of material support for terrorism, solicitation, and inchoate conspiracy.
- Bahlul appealed to the United States Court of Appeals for the District of Columbia Circuit.
- The D.C. Circuit, sitting en banc, vacated Bahlul's convictions for material support and solicitation as violations of the Ex Post Facto Clause.
- The en banc court remanded Bahlul’s remaining challenges to his conspiracy conviction back to the original three-judge panel for consideration.
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Issue:
Does Congress violate Article III of the Constitution by authorizing a law of war military commission to try an individual for inchoate conspiracy, an offense not recognized as a violation of the international law of war?
Opinions:
Majority - Rogers, J.
Yes, Congress violates Article III by authorizing a military commission to try an individual for inchoate conspiracy. Law of war military commissions represent a limited exception to Article III's vesting of judicial power in the federal courts, and this exception is confined to offenses against the international law of war. The Supreme Court's precedent, particularly in Ex parte Quirin, establishes that the law of war is a branch of international law, and the historical justification for the exception—that such offenses were not triable by jury at common law—does not apply to conspiracy, which was a jury-triable offense. The government has failed to demonstrate a settled historical practice of trying purely domestic offenses like inchoate conspiracy in law of war military commissions. Therefore, extending military commission jurisdiction to this offense constitutes a violation of the separation of powers by encroaching on the authority of the Article III judiciary.
Concurring - Tatel, J.
Yes, al Bahlul's conviction for conspiracy violates Article III. The key distinction from the court's prior en banc decision is the standard of review; because the Article III challenge is a non-waivable structural claim, it is reviewed de novo, unlike the forfeited ex post facto claim which was reviewed for plain error. Under de novo review, Supreme Court precedent in Ex parte Quirin and its progeny clearly indicates that the military commission exception to Article III is limited to offenses that violate the international law of war. As the government concedes conspiracy is not such an offense, Congress's attempt to place it within a military commission's jurisdiction is an unconstitutional infringement on the judicial power. To hold otherwise would grant Congress virtually unlimited authority to sideline Article III courts in favor of military tribunals for any war-related crime.
Dissenting - Henderson, J.
No, Congress does not violate Article III by authorizing military commissions to try enemy combatants for conspiracy. Bahlul forfeited this challenge and it should be reviewed only for plain error, which he cannot satisfy. On the merits, Congress's authority to define offenses triable by military commission is not derived exclusively from the Define and Punish Clause but from its combined Article I war powers, which are additive with the President's powers and deserve extraordinary deference. Supreme Court precedent, particularly Application of Yamashita, shows that the law of war is not static and can be adapted by our nation's political branches to meet new threats. Historical practice, including the trial of the Lincoln conspirators, supports trying conspiracy by military commission. The majority's holding improperly constrains the political branches' ability to wage war and ignores the fact that Bahlul, as a non-citizen tried outside the U.S., lacks Article III jury trial rights.
Analysis:
This decision significantly restricts the scope of offenses triable by military commissions, tying their jurisdiction directly to what is recognized under the international law of war. It reinforces the separation of powers by preventing Congress and the Executive from using military tribunals to prosecute domestic crimes, even if those crimes are related to an armed conflict. The ruling forces the government to prosecute certain terrorism-related offenses, like inchoate conspiracy, in Article III federal courts, which provide full constitutional protections. This creates a clear jurisdictional line between military commissions and civilian courts based on the international status of the charged offense, impacting how the U.S. prosecutes enemy combatants in the future.
