Time's Up, Councilman: Why Military Commissions Warrant Exemption from Abstention Doctrine.

• Author: Lilly, Alex W.S.

In 2017, two Guantanamo Bay detainees filed writs of certiorari with the Supreme Court of the United States. Through different claims, both men argued that the military commissions convened to prosecute them lacked subject matter jurisdiction to do so. The first man, Ali Hamza Ahmad Suliman al Bahlul, challenged his conspiracy conviction on the basis that it is unconstitutional to try purely domestic offenses in a non-Article III tribunal. The second, Abd al Rahim al-Nashiri, has not yet been tried. As such, he raised pretrial objections to his military commission's competence to try him for crimes committed pre 9/11. In October 2017, the Supreme Court denied both petitions for certiorari.

The Court's denial of both petitions had a devastating impact on each defendant individually. For Bahlul, it upheld both a life sentence and the lower D. C. Circuit Court of Appeals' questionable determination that military commissions may try purely domestic offenses--like conspiracy--without violating Article III. In Nashiri, the D.C. Circuit determined that Councilman abstention--the doctrine that generally prevents federal habeas review of military proceedings until post-conviction appeal--applies to Nashiri's case. By declining to grant his writ, the Court foreclosed Nashiri's opportunity to raise a basic jurisdictional challenge until after his eventual conviction years down the road.

Refusing to hear these cases also contributed to a larger public policy problem looming over the military commissions. Both natural justice and rational terrorism policy require judicial processes that can efficiently and definitively prosecute those who commit horrendous crimes. Still, despite an American justice system that purports to be a beacon of the rule of law in the world, our courts display continued and outright aversion to resolving important questions posed by foreign defendants. In their current form, the military commissions system and corresponding appeals process provide minimal due process while leaving basic constitutional and statutory questions unanswered. This sad state of affairs contributes to animosity toward the "war on terror" abroad, forces victims to wait years for uncertain outcomes, and undermines the basic assumption that American justice is grounded in the rule of law.

Bahlul and Nashiri, together, are illustrative of this problem. The Nashiri court's broadening of Councilman abstention now bars every Guantanamo detainee from raising collateral jurisdictional challenges to the military commissions. Such foreseeable challenges include--but are not limited to--the same paramount constitutional question previously raised in Bahlul.

In short, the Supreme Court's refusal to hear both cases allows Article III courts to duck the responsibility to reach the merits on these questions anytime soon. I propose that Congress amend the (2009) Military Commissions Act to create an exception to Councilman abstention for military commissions--forcing federal courts to confront these cases on their merits, and providing the certainty and finality of process that terrorist prosecutions so badly need.

Introduction Part I: Military Commissions in the United States Part II: Bahlul v. United States A. Bahlul Procedural History B. International vs. Domestic Offenses: What is Conspiracy? C. Upholding Bahlul's Conviction on the Merits D. The End of the Road: The Supreme Court Denies Certiorari in Bahlul Part III: Nashiri v. Trump Part IV: Councilman Abstention A. So, What is Councilman Abstention? B. Councilman Abstention Should Not Extend to Military Commissions i. The First "Consideration of Comity" Does Not Apply to Military Commissions ii. The Second "Consideration of Comity" Does Not Apply to Military Commissions iii. Additional Reasons Councilman Should Not Apply to Military Commissions Part V: The Effects of Supreme Court Abdication in Nashiri and Bahlul Part VI: Proposal for Amendment to the (2009) MCA Creating an Exception to Councilman Abstention for Military Commissions Conclusion Introduction

On October 12, 2000, the U.S.S. Cole, a U.S. navy destroyer, was on its way to join a fleet of warships tasked with enforcing American trade sanctions against Iraq. (1) It stopped to refuel in Aden, Yemen, and was scheduled to remain at port for a short four hours before re-embarking on its mission. (2) At 12:15 PM local time, however, an explosion erupted, tearing through the ship's port side and into the engine room, the mess, and the living quarters. (3) Seventeen U.S. sailors were killed and (38) more were injured. (4) The culprit was a small, motorized rubber dinghy manned by two suicide bombers and alleged al Qaeda affiliates. (5) The attack's success brought its mastermind--Abd al Rahim al-Nashiri--immediate status within al Qaeda and led to Nashiri's subsequent appointment as chief of the terrorist network's operations for the Arabian Peninsula. (6)

After the attack, a man named Ali Hamza Ahmad Suliman al Bahlul created what became a popular propaganda video celebrating the bombing of the Cole and encouraging jihad targeting the United States. (7) Impressed with the video and its popularity, then-Saudi exile Osama bin Laden (8) appointed Bahlul as one of his top aides and public relations secretary. (9) Bahlul quickly became the indispensable brainchild of al Qaeda's propaganda and recruitment machine, leading one United States federal appeals court judge to liken him to Joseph Goebbels (10)--Hitler's infamous propaganda minister in 1930s Nazi Germany. He wrote public statements for bin Laden, maintained al Qaeda databases, and arranged two of the 9/11 hijacker's loyalty oaths and "martyr wills." (11) Bahlul even attempted to participate in the commission of the 9/11 attacks himself, but bin Laden refused. As the terrorist network's resident "media man," Bahlul was too valuable to lose. (12)

In the context of the post-9/11 American political landscape, Bahlul and Nashiri are decidedly unsympathetic defendants. Both men were eventually captured; (13) both were charged in military commission trials with various crimes related to the "war on terror," (14) and both are currently held at the United States military stronghold in Guantanamo Bay, Cuba. (15)

Neither is a stranger to the federal appeals system. In different capacities, both men have made their rounds through the United States Court of Military Commission Review (CMCR) and the D.C. Circuit Court of Appeals (D.C. Circuit)--the designated appellate tribunals for trials conducted by military commission--for the greater part of the last decade. (16) After the Supreme Court denied both of their writs of certiorari in October 2017, (17) Bahlul will serve out the rest of his life in detention and (18) Nashiri's trial and appeals process will continue indefinitely, (19) consuming an outrageous amount of federal resources over the coming decade. (20)

This Note does not attempt to evaluate the claims Bahlul and Nashiri raise on their merits. Instead, I propose a practical, legislative mechanism to ensure that constitutional questions hanging over the military commissions are resolved in a timely manner.

Part I of this Note provides a brief history of the military commissions system in the United States. Moreover, it describes how commissions at Guantanamo came to be pursuant to the Military Commissions Acts of (2006) and (2009).

Part II reviews the procedural history of Bahlul v. United States, describes the charge of "conspiracy" as it is traditionally applied in U.S. domestic and international law, and discusses the Supreme Court's denial of certiorari in Bahlul.

Part III discusses Nashiri v. Trump and the Court's decision to deny certiorari in that case less than a week after declining to hear Bahlul.

In Part IV, I analyze the Councilman abstention doctrine and discuss why the D.C. Circuit should not have abstained in Nashiri.

Part V analyzes the detrimental effects of the Supreme Court's refusal to hear Bahlul and Nashiri.

Finally, in Part VI, I propose that Congress should carve out an exception to the Councilman abstention doctrine by adding a provision to the (2009) MCA that would require federal courts to exercise collateral review over jurisdictional challenges to the military commissions.

Part I: Military Commissions in the United States

In the United States, military commissions are military tribunals convened to prosecute individuals for "unlawful conduct associated with war." (21) On November 13, 2001, President George W. Bush issued a military order authorizing the establishment of a military commission to try those individuals responsible for the 9/11 terrorist attacks. (22) Unlike traditional Article III courts, current military commissions at Guantanamo Bay are a variety of specialized Article I trial courts sanctioned pursuant to the Military Commissions Act (MCA) of 2009 (23) and, previously, the MCA of 2006). (24) The tribunals may try "alien unprivileged enemy belligerent [s] "that have engaged in--or "purposefully and materially supported"--hostilities against the United States or its coalition partners. (25) The commissions may also try such enemy combatants that were members of al Qaeda before their capture. (26) The MCA expressly enumerates 32 offenses that may be tried by a military commission, as long as they were "committed in the context of and associated with hostilities." (27)

In the military order, President Bush argued that it would be impractical to extend the legal and evidentiary principles traditionally applied in federal criminal trials to military commissions. (28) Despite the Bush Administration's loud support for its policy of denying accused terrorists access to federal courts (29)--and although enemy combatants may be tried by military commission for international war crimes (30)--an enemy combatant is not precluded from prosecution in an Article III court. (31) President Barack Obama had more faith than his...