Alex W.S. Lilly


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-Artide 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.