From [HERE] Since the establishment of the Guantánamo Bay military commissions over 15 years ago, the dominant legal question has been whether they may try individuals charged with ordinary domestic criminal offenses that are not recognized as international war crimes. After years of conflicting decisions, that question has finally reached the Supreme Court, which will decide on Thursday whether to consider the issue in its current term.
The case involves a Yemeni prisoner at Guantánamo, Ali Hamza Ahmad Suliman al-Bahlul, who was convicted by a military commission in 2008 of conspiracy to commit war crimes. While this is a crime under domestic law, it is not recognized as a war crime by international law. Hence the constitutional question: Does a military commission’s assumption of federal court jurisdiction over domestic crimes violate the Constitution, which reserves the “trial of all crimes” to the judiciary?
The United States Court of Appeals for the District of Columbia upheld Mr. Bahlul’s conviction last year. But Judge Brett Kavanaugh, in a concurring opinion, said the question in play should be decided because “other cases in the pipeline require a clear answer.” He’s absolutely right. Settling this question would go a long way toward settling the structural legitimacy of the Guantánamo tribunals. The justices should take heed and grant certiorari.
Although the United States had occasionally used military commissions to try enemy soldiers before the Sept. 11 attacks, the Supreme Court has upheld the constitutionality of such trials only in areas under military occupation or in cases in which the offenses were international war crimes. Because military occupation presupposes the absence of a functioning, civilian government, military tribunals are the only option. And as for international war crimes, the Supreme Court concluded during World War II that such offenses committed by enemy belligerents fell outside of the Constitution’s jury-trial protections — which otherwise require that all serious crimes be tried in civilian court.
The principal innovation (and one of the central controversies) of the post-Sept. 11 military trials at Guantánamo has been to extend the reach of military commissions to purely domestic criminal offenses, especially conspiracy and “providing material support to terrorism.” The government has been unable to tie almost any of the Guantánamo detainees — most of whom were, at most, low-level Qaeda fighters — to specific international war crimes. But rather than simply hold the detainees in military detention or try them in civilian court, the government has used the secrecy-laden criminal proceedings at Guantánamo to push the constitutional envelope.
Each of the eight convictions obtained by the commissions to date has included at least one purely domestic criminal charge, and five turned exclusively on such offenses. And each of the three cases pending at Guantánamo, including the trial of five men accused of being the masterminds of the Sept. 11 attacks, includes charges unsupported by the Supreme Court’s pre-Sept. 11 precedents.
There are compelling arguments against extending the jurisdiction of military commissions to domestic offenses.
First, as the court recognized during World War II, military tribunals are a narrow and carefully circumscribed exception to the general right of all criminal defendants to a trial by a civilian jury. To expand that exception beyond international war crimes, even for those accused of being part of Al Qaeda, is to open the door to further, novel incursions on that right in the name of national security. As Justice Felix Frankfurter once explained, “The safeguards of liberty have frequently been forged in controversies involving not very nice people.”
Second, allowing military tribunals to try domestic offenses creates a serious line-drawing problem, since it is not at all clear what would otherwise limit the jurisdiction of military tribunals — and the government has not identified such a line in the Bahlul case. Especially as transnational terrorism continues to blur longstanding distinctions between the military and civilian spheres, preserving a constitutional stopping point is crucial.
Third, and perhaps most important, the government has demonstrated no compelling need for the Guantánamo tribunals. Civilian courts have been remarkably effective over the past 15 years in trying and convicting terrorism suspects, even amid complaints by some civil liberties groups that judges have been too solicitous of government arguments. Just last Friday, a federal court in Brooklyn convicted an American for his involvement in a 2009 truck bombing of a United States Army base in Afghanistan. He had been captured by Pakistani authorities in 2014 and extradited to the United States. And this week, the trial of a man prosecutors say was the ringleader of the Benghazi attacks began in a civilian federal courtroom in Washington.
Despite the success of civilian courts in trying terrorism defendants, there are growing indications that the Trump administration not only intends to keep Guantánamo open, but may even reinvigorate the detention operations and military commissions. Whether domestic offenses are or are not within the jurisdiction of the Guantánamo tribunals will have a lot to say about their utility as a policy option for future detainees — along with the legitimacy of the entire military commission enterprise thus far.
The government has nevertheless urged the Supreme Court to turn down the Bahlul case, arguing that the lower courts have not been divided on the major constitutional question it presents, and that, in any event, there are difficulties specific to the case that would preclude the justices from deciding the issue. But the appeals court decision stands in marked contrast to both claims: First, seven of the nine judges who ruled on Mr. Bahlul’s last appeal thought that it was the right case to decide the constitutional question, and then they reached a decision, dividing 4-3 in favor of the government.
If the justices are interested in settling, once and for all, the central question that has surrounded the post-Sept. 11 military commissions, they should agree to hear the case.
Stephen I. Vladeck is a professor of law at the University of Texas.