In a divided ruling last Friday, the federal appeals court in Washington threw out the military commission conviction of a Guantánamo detainee, Ali Hamza Ahmad Suliman al Bahlul, holding that the Constitution forbids the use of irregular war courts to try purely domestic offenses like “conspiracy.” Nothing in last week’s decision prevents the government from trying the exact same charges (and same defendants) in civilian courts. Instead, the real impact of the decision is to drive home how misconceived the Guantánamo military commissions have been from the get-go, and how little they now stand to accomplish.
President George W. Bush created the Guantánamo military commissions back in 2001 with the goal of using such tribunals as a more efficient, more secure, and more secret forum for prosecuting terrorism suspects. Civil liberties groups and legal scholars objected, arguing that the ordinary civilian courts were perfectly capable of handling even the highest-profile terrorism cases. But the government defended such trials by relying upon precedents from World War II, when hundreds of U.S. military commissions tried thousands of enemy belligerents for war crimes, trials that were upheld by the Supreme Court.
All of those precedents, though, involved recognized violations of the international laws of war—such as deliberately attacking civilian targets, or mistreating prisoners of war. Although a handful of the Guantánamo detainees, like the 9/11 defendants, could be similarly tied to international war crimes, the government charged other detainees on theories of “inchoate” liability as reflected in offenses like conspiracy, and “providing material support,” which only requires proof that the defendant indirectly contributed to al-Qaeda, and not that he was in any way directly responsible for specific and well-established war crimes.
The problem with these charges is easy to describe: They’re crimes, but they’re not war crimes—they describe conduct that Congress can criminalize (as it did in the days after 9/11), but the constitutional rule we have always followed is that such domestic law crimes must be tried by civilian courts, with juries and the nonmilitary judges who are the guarantors of our constitutional protections. Military tribunals, by contrast, must be reserved for trying our own soldiers, or for trying especially heinous offenses that violate international laws recognized the world over.
To its credit, the Obama administration in al Bahlul’s case conceded that the charges in question were based on domestic law, of the sort usually prosecuted in civilian courts. Its argument was not that al Bahlul’s conspiracy conviction was an international war crime; rather, the government maintained that the Constitution allows military commissions to try certain domestic law crimes, as well. That was the argument that the Court of Appeals rejected last week. As Judge Judith Rogers explained, the narrow exception the Constitution recognizes for military commission trials of war crimes “does not extend to the trial of domestic crimes in general, or inchoate conspiracy in particular.” In other words, although military commissions may constitutionally try international war crimes, they may not try wholly domestic offenses. Otherwise, it would be too easy for Congress to undermine the Constitution’s strong preference for civilian, rather than military, trials.
To be clear, the Court of Appeals’ ruling will have no bearing on the power of the Guantánamo military commissions to try international war crimes—and so the 9/11 case, at the very least, will go forward. But of the eight cases in which the commissions have obtained convictions to date, fully seven included inchoate charges that the court's June 12 decision invalidates. In practical terms, this means that the tens of millions of dollars and tens of thousands of man-hours that have thus far been devoted to the Guantánamo military commissions have managed to produce exactly one clean conviction. That success rate stands in marked contrast to that of the civilian courts, in which, as Judge David Tatel pointed out in his opinion concurring in last week’s ruling, there have been hundreds of terrorism-related convictions over the past decade, most coming without either extraordinary expense or fanfare.
The future outlook for the commissions is even bleaker. Although the trial of the 9/11 defendants for established war crimes continues (however laboriously) through pre-trial proceedings, the case against the alleged bomber of the USS Cole has been beset with its own jurisdictional objections, and the only other case in the pipeline includes the very charge that last week’s decision forecloses. Even in the best-case scenario, the government concedes, it only envisions future trials against seven additional Guantánamo detainees. And even some of those cases may no longer be viable in light of this new ruling.
All of this raises a simple question: If, at the end of the day, the only thing the Guantánamo military commissions accomplish is to convict the 9/11 defendants and one or two other low-level al Qaeda figures, will all of this effort have been worth it? I have to think that even President Bush might say no.
Stephen Vladeck is a professor of law and the Associate Dean for Scholarship at American University Washington College of Law.