Al Bahlul v. United States, 792 F.3d 1 (D.C. Cir. 2015)

Facts

  • Ali Hamza Ahmad Suliman al Bahlul, a Yemeni national and alleged al Qaeda member, was detained at Guantánamo Bay after capture abroad.

  • The government alleged he worked as a propagandist and media aide supporting al Qaeda and Osama bin Laden.

  • A military commission convened under the Military Commissions Act of 2006 convicted him of:

    • Conspiracy to commit war crimes
    • Providing material support for terrorism
    • Solicitation to commit war crimes

  • He received a life sentence; the military appellate court affirmed.

  • On prior en banc review, the D.C. Circuit vacated the material-support and solicitation convictions on Ex Post Facto grounds but left the conspiracy conviction in place and remanded for remaining constitutional challenges.

Issues

  1. Whether Article III permits Congress to authorize a “law-of-war” military commission to try inchoate conspiracy when conspiracy is not an offense under the international law of war.
  2. Whether the Article III objection was forfeited by the defendant’s failure to raise it in the military commission proceedings.
  3. Whether, if necessary to the judgment, Congress’s Article I powers, the First Amendment, or the Fifth Amendment’s equal protection component otherwise barred the conspiracy conviction in this forum.

Decision

  • The D.C. Circuit panel vacated the conspiracy conviction.
  • It held that Article III forbids adjudicating inchoate conspiracy in a “law-of-war” military commission whose jurisdiction is limited to offenses recognized under the international law of war.
  • It treated the Article III challenge as structural and therefore not forfeited despite any lack of timely objection.
  • Having vacated the sole remaining conviction on Article III grounds, it did not resolve other constitutional theories as independent grounds for relief.

Legal Principles

  • Law-of-war military commissions are a limited exception to Article III adjudication and are confined to trying offenses against the international law of war.
  • Congress may not, consistent with Article III’s allocation of the judicial power, expand a law-of-war commission’s jurisdiction to cover purely domestic or inchoate offenses not recognized as law-of-war violations.
  • Structural separation-of-powers limits under Article III can be reviewed notwithstanding ordinary waiver or forfeiture rules.

Conclusion

The panel held that a law-of-war military commission lacked constitutional authority under Article III to try and convict al Bahlul for inchoate conspiracy because that offense was not a recognized violation of the international law of war, and it vacated the conspiracy conviction on that basis.