The Left Strikes a Blow against Military Commissions

By Andrew C. McCarthy

Saturday, June 20, 2015

Killing off military commissions has been an obsession of the Lawyer Left for over a dozen years. It may, at long last, be “Mission Accomplished” thanks to last week’s ruling by a deeply divided federal appeals court.

In al-Bahlul v. United States, a three-judge panel of the D.C. Circuit threw out the terrorism conspiracy conviction of Osama bin Laden’s personal aide and propaganda director, an al-Qaeda jihadist who bragged about his Goebbels-like role in the killing of nearly 3,000 Americans on September 11, 2001.

The court, nearly a year ago, had already thrown out Suliman al-Bahlul’s other convictions for providing material support to terrorism and soliciting terrorism against the United States. Sitting en banc on that occasion, the Circuit’s seven judges ruled that al-Bahlul had an American constitutional right against prosecution on ex post facto crimes. These findings, consistent with recent Circuit precedent, were a remarkable measure of the Lawyer Left’s progress in expanding judicial protections for America’s enemies given that (a) the jihadist is a Yemeni whose only connection to our nation and its Constitution is to make war against them, and (b) congressional statutes criminalizing material support and solicitation of violence long predated al-Bahlul’s commission of those offenses.

Now, al-Bahlul’s remaining conviction for the al-Qaeda mass-murder conspiracy — a conspiracy the panel majority studiously describes as “inchoate,” though it doubtless seemed definitive enough to the terror network’s thousands of victims — has been nullified on a similarly strained rationale. Judges Judith W. Rogers and David S. Tatel, Clinton appointees both, claim that a conspiracy prosecution in the framework of a military commission — an executive branch (or Article I) tribunal — violates the Constitution’s vesting of judicial power in the Article III civilian federal courts.

Of course, the handling of alien enemy combatants in wartime — as opposed to American criminal defendants in peacetime — has long been a constitutional prerogative of the commander-in-chief, not the courts. Moreover, as the majority judges concede, Congress expressly approved the commissions and vested them with authority to try conspiracy offenses.

Judges Rogers and Tatel nevertheless contend that because “inchoate conspiracy” has not traditionally been a crime under the law of war, Congress is impotent to permit conspiracy trials by military commissions. Thus does the majority elevate the theorizing of international law scholars over the legislative act of the people’s representatives, notwithstanding that the Constitution makes Congress supreme in both defining federal offenses and delineating the jurisdiction of the federal courts.

The majority’s rationale is ably rebutted in an 85-page dissent by Judge Karen LeCraft Henderson, a George H. W. Bush appointee. Judge Henderson is duly taken aback by the court’s arrogance in undermining wartime national-security decisions, a subject the Constitution commits to the judgment of the political branches, and one on which judges have scant institutional competence. At the Supreme Court’s urging, the president and Congress had come together on a system for trying enemy combatants. From a constitutional standpoint, therefore, the military-commissions system they enacted was owed maximum judicial deference.

Furthermore, as Judge Henderson details, al-Bahlul did not even object to being tried on the conspiracy offense. Indeed, he contemptuously refused to participate in a proceeding governed by American law rather than Allah’s sharia dictates. He thus waived any right he may have had to complain about it on appeal — at best, his belated claim should have been rejected under the rigorous “plain error” standard of review (which permits the correction only of actual errors that are significant, obvious – i.e., not subject to reasonable dispute – and seriously compromise the fairness, integrity or public reputation of judicial proceedings).

Yet, the majority brushed these daunting impediments aside, hell-bent on returning the nation to the Clinton-era paradigm of international terrorism as the province of civilian prosecution — in which foreign enemy jihadists are endowed with the majestic due process safeguards the Constitution vouchsafes for the American citizens they plot to kill. Judge Henderson lamented the majority’s hubris:

    The immediate consequences of today’s decision are serious enough: my colleagues bar the Government from employing military commissions to try individuals who conspire to commit war crimes against the United States. But the consequences moving forward may prove more alarming still. My colleagues’ opinion means that, in future conflicts, the Government cannot use military commissions to try enemy combatants for any law-of-war offense the international community has not element-by-element condoned.

Yes, the “international community”: America’s national defense is to be determined not by the sovereign choices of our elected representatives but by non-Americans, including regimes hostile to our interests — some aiding and abetting our jihadist enemies.

The feckless anti-terrorism framework designed by Bill Clinton was not abandoned on a whim. It took eight years of the enemy’s bombs being answered by Justice Department subpoenas, eight years during which the jihad became increasingly audacious. After 9/11, the nation decided it was time to regard our enemies as . . . enemies, not common criminals.

Civilian prosecution was not mothballed. To the contrary, it has remained an essential domestic counterterrorism component. Our war-footing, however, complemented it with armed-combat protocols. This filled the huge vulnerability in our defenses: unleashing our troops to go with their peerless effectiveness to overseas jihadist safe havens, where the jurisdiction of the FBI and the writ of American judges does not run. The laws of war, as invoked and interpreted by the political branches the Constitution makes responsible for warfare, enabled our security services to detain enemy operatives without trial, collect precious intelligence from interrogations and seizures, and administer military justice to our enemies without exposing intelligence files to the liberal discovery rules of civilian due process.

The empowerment of America’s enemies was an unintended consequence of President Clinton’s misguided counterterrorism approach. He sought to make an example of how efficiently and severely our justice system could deal with the most heinous offenders; he succeeded, however, in illustrating the folly of using domestic law-enforcement rules to confront international terror networks backed by hostile nation-states and other deep-pocketed foreign sponsors.

Alas, what was a Clinton bug is an Obama feature. In the incumbent administration, many of whose lawyers volunteered their services to terrorist combatants while in private practice, empowering such American enemies as Iran and the Taliban is a purposeful strategy: a calculation that this will induce them to be enemies no more, that somehow jihadist regimes will align with the Westerners they despise against the jihadist groups whose sharia supremacism they share – all to promote the Great Satan’s conception of “stability.”

With the D.C. Circuit’s help, Obama has turned the counterterrorism clock back to Clinton time, with who better than Hillary next in line to preside. Noting the Islamic State’s gathering strength and unspeakable atrocities, Judge Henderson ruefully observed, “The timing could not be worse.”