Legal Sidebari

Supreme Court Declines to Take Up Military
Commission Challenges – Al Bahlul and Al-
Nashiri
December 12, 2017
A version of this Sidebar originally appeared June 14, 2017.
Update: The Supreme Court denied certiorari in both cases in October 2017.
Two detainees at Guantanamo Bay earlier this year petitioned the Supreme Court for certiorari
challenging the current military commission system under the Military Commissions Act (MCA), but in
October 2017, the Court denied both petitions. The Supreme Court last addressed military commissions in
Hamdan v. Rumsfeld, a 2006 case that struck down the tribunal system established by the executive
branch. The Supreme Court’s denial of certiorari in these two cases means that the issues will remain
unresolved for the time being. In Al Bahlul’s case, due to the fractured nature of the opinion below, the
Court of Military Commission Review (CMCR) opinion technically remains controlling, even though
none of the appellate judges on the U.S. Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) addressed its theory of the case and the government did not press for affirmance on that basis. In
Al-Nashiri’s case, the accused may have the opportunity to raise the challenges again if he is convicted by
military commission, but, given that he was challenging the jurisdiction of the military commission to
begin with and asserting the right not to be subject to it, prevailing on appeal would not provide the relief
sought.
As described in a previous Sidebar, Ali Hamza Ahmad Suliman al Bahlul was convicted in 2009 by a
military commission for conspiracy, solicitation, and material support of terrorism in connection with his
role as Osama bin Laden’s public relations manager. He chose not to put up a defense at the military
commission, but appealed his conviction at the CMCR on the basis that the military commission had
applied ex post facto law. The CMCR validated Congress’s determination that the offenses at issue are
ones that violate international law and are customarily triable by military commission under U.S. military
law.
In 2014, the D.C. Circuit, sitting en banc, voided Al Bahlul’s convictions for material support of terrorism
and solicitation on ex post facto grounds. But the court sent the conviction for inchoate conspiracy back to
a three-judge panel of the D.C. Circuit to determine what standard should apply to Al Bahlul’s appeal and
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whether Congress exceeded its Article I, §8 authority by defining crimes triable by military commission
to include offenses that, like inchoate conspiracy, do not violate the international law of war. After the
three-judge panel deemed the conspiracy conviction unconstitutional in June 2015, the appellate court
granted the government’s petition for rehearing en banc, directing the parties to brief the questions of
what is the appropriate standard for appellate review; whether the conspiracy charge was an improper
exercise of Congress’s authority to “define and punish … Offences against the Law of Nations”; and
whether the trial of such a charge by military commission violates Article III’s vesting of judicial power
in the courts.
In October 2016, the splintered full bench of the D.C. Circuit reinstated Al Bahlul’s conviction for
conspiracy with a six-judge majority voting to affirm the conviction, although the judges who agreed with
that conclusion arrived at it in different ways. The per curiam opinion explains that four judges concluded
that the Constitution permits Congress to make conspiracy to commit war crimes an offense triable by
military commission, even though it was conceded that conspiracy is not a crime recognized under the
international law of war. Three of those judges found this authority among Congress’s war powers, while
another judge pegged it to Congress’s power to define and punish international crimes. Two other judges
who affirmed the conviction would have avoided the constitutional question by deciding the issue on
other grounds. Three of the nine participating judges dissented, determining that the Constitution does not
allow Congress to make inchoate conspiracy triable by military commission.
Al Bahlul filed a petition of certiorari, in March 2017, asking the Supreme Court to address whether
Congress, by assigning to the military the task of trying non-war crimes, has usurped the role of the
judiciary. He also asked for an opinion on whether the retroactive application of the MCA definitions of
crimes violates the Ex Post Facto clause of the Constitution. Finally, he asked the Court to consider
whether Congress violated the equal protection guarantee of the Fifth Amendment by limiting the
jurisdiction of military commissions to non-citizens.
The second petition concerned Abd Al-Rahim Hussein Al-Nashiri, a Saudi national charged before a
military commission with conspiring to commit terrorism and murder in violation of the law of war in
connection with the U.S.S. Cole bombing in 2000, an earlier attempt to bomb the U.S.S. The Sullivans,
and the 2002 bombing of a French vessel, M/V Limburg. He initially attempted to avoid trial by military
commission in 2012, but the U.S. Court of Appeals for the Ninth Circuit declined to stop his trial, as
described in a previous Sidebar.
Al-Nashiri then sought habeas protection in April 2014 in the federal district court in the District of
Columbia, claiming that jurisdiction was lacking because the charges contravene the MCA requirement
that offenses be committed “in the context of and associated with hostilities.” “Hostilities” are defined to
mean “any conflict subject to the laws of war.” Al-Nashiri argued in essence that the law of war did not
apply until the conflict between Al Qaeda and the United States was recognized in late 2001, and that the
bombing of the French tanker did not take place in the context of hostilities because France never
considered itself to be a party to an armed conflict. The district court denied his petition applying the
doctrine of abstention from the 1975 Supreme Court case Schlesinger v. Councilman, which holds that
“Federal courts normally will not entertain habeas petitions by military prisoners unless all available
military remedies have been exhausted.”
A divided panel of the D.C. Circuit affirmed the decision. The appellate court majority denied that
extraordinary circumstances compel the district court to consider Al-Nashiri’s interlocutory argument for
sparing him from trial by military commission. The court deemed the military commission system set up
by Congress, including the opportunity for review on appeal to an Article III court, fully adequate to
consider Al-Nashiri’s jurisdictional arguments. In order for Al-Nashiri to avoid the abstention doctrine,
the court explained he would have to show “both that he will suffer a ‘great and immediate’ harm absent
federal-court intervention and that the alternative tribunal is ‘incapable of fairly and fully adjudicating the
federal issues before it.’” The majority did not agree that Al-Nashiri’s alleged mistreatment in detention

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and resulting post-traumatic stress syndrome compelled a civilian trial in his case. The court also rejected
the claim that the MCA and the Constitution give Al-Nashiri the “right not to be tried” by military
commission.
One judge dissented, highlighting differences between Councilman (a court martial challenge) and the
military commission context when the accused is not a member of the U.S. military. He also thought that
even if abstention were generally applicable to military commission trials, Al-Nashiri’s claims of having
endured years of abuse were the type of unusual and extraordinary circumstances that might outweigh the
principles of inter-branch comity and equity underlying the abstention doctrine.
Al-Nashiri’s petition for certiorari asked the Supreme Court to consider (1) whether the abstention
doctrine applies to military commission trials; (2) whether the “extraordinary circumstances” exception to
abstention is met where a capital defendant will suffer irreparable harm if subjected to trial by military
commission due to the government’s past conduct; and (3) whether questions of first impression may be
addressed through a writ of mandamus (i.e., a court order directing an official to take a certain action).


Author Information

Jennifer K. Elsea

Legislative Attorney




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