Ali Hamza Ahmad al Bahlul v. United States ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2020 Decided August 4, 2020
No. 19-1076
ALI HAMZA AHMAD SULIMAN AL BAHLUL,
PETITIONER
v.
UNITED STATES OF AMERICA,
RESPONDENT
On Petition for Review from the United States
Court of Military Commission Review
Michel Paradis, Counsel, Office of the Chief Defense
Counsel, argued the cause for petitioner. With him on the
briefs were Mary McCormick, Timothy McCormick, and Todd
E. Pierce.
Eric S. Montalvo was on the brief for amici curiae The
Anti-Torture Initiative of the Center for Human Rights &
Humanitarian Law at American University Washington
College of Law in support of petitioner.
Joseph Palmer, Attorney, argued the cause for respondent.
With him on the brief were Steven M. Dunne, Chief, and
Danielle S. Tarin, Attorney.
2
Before: GRIFFITH and RAO, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: Ali Hamza Ahmad Suliman Al Bahlul
was Osama bin Laden’s head of propaganda at the time of the
September 11 attacks. After he was captured in Pakistan,
Al Bahlul was tried and convicted by a military commission in
Guantanamo Bay. Our court subsequently vacated two of his
three convictions on ex post facto grounds and remanded his
case back to the military courts, where his life sentence was
reaffirmed. In this most recent appeal, Al Bahlul raises six
different statutory and constitutional challenges to his sentence
and detention, including three challenges to the appointment of
the officer who convened the military commission under the
Military Commissions Act of 2006. Only one argument has
merit: In reaffirming Al Bahlul’s life sentence, the Court of
Military Commission Review failed to apply the correct
harmless error standard, so we reverse and remand for the court
to reassess the sentence. Each of Al Bahlul’s remaining
arguments lacks merit for the reasons explained below.
I.
Al Bahlul is a Yemeni national who travelled to
Afghanistan in the late 1990s to join Al Qaeda. Once there,
Al Bahlul pledged an oath of loyalty to Osama bin Laden,
underwent military training, and eventually led Al Qaeda’s
propaganda efforts. Most notably, he created a video for
bin Laden in the aftermath of the U.S.S. Cole bombing that
celebrated the terrorist attack on an American destroyer and
called for jihad against the United States. Al Bahlul also served
as bin Laden’s personal assistant and secretary for public
relations. Just before the attacks of September 11, 2001,
3
Al Bahlul arranged loyalty oaths for two of the hijackers. In the
immediate aftermath, he operated the radio used by bin Laden
to follow media coverage of the attacks.
Weeks after the September 11 attacks, Al Bahlul fled to
Pakistan, where he was captured in December 2001 and turned
over to the United States. He was transferred in 2002 to the
United States Naval Station at Guantanamo Bay, Cuba, where
he has since been detained. This is Al Bahlul’s second direct
appeal challenging his prosecution under the military
commission system established by Congress in the Military
Commissions Act of 2006 (“2006 MCA”), Pub. L. No. 109-
366, 120 Stat. 2600.1 In previous opinions, we have provided a
detailed account of his legal actions, so we provide only a brief
summary here. See Al Bahlul v. United States (Al Bahlul I),
767 F.3d 1, 5–8 (D.C. Cir. 2014) (en banc); Al Bahlul v. United
States (Al Bahlul III), 840 F.3d 757, 758 (D.C. Cir. 2016) (per
curiam).
Al Bahlul was tried by a military commission convened
pursuant to the 2006 MCA. Section 948h of the 2006 MCA
provides that “[m]ilitary commissions … may be convened by
the Secretary of Defense or by any officer or official of the
United States designated by the Secretary for that purpose.” 10
U.S.C. § 948h. In a number of provisions, the 2006 MCA refers
1
Congress amended the 2006 MCA three years later. See National
Defense Authorization Act for Fiscal Year 2010, Pub. L. No. 111-
84, §§ 1801–07, 123 Stat. 2190, 2574–2614 (2009) (“Military
Commissions Act of 2009”). Al Bahlul’s trial was conducted under
the original 2006 MCA. While the statute was for the most part “left
… substantively unaltered as relevant” to Al Bahlul’s prosecution,
Al Bahlul v. United States (Al Bahlul I), 767 F.3d 1, 6 n.1 (D.C. Cir.
2014), we note explicitly throughout this opinion when citing
provisions of the 2006 MCA that were later changed.
4
to the person designated under Section 948h as “the convening
authority.” See, e.g., 10 U.S.C. §§ 950b, 950f(c). The 2006
MCA also vests the Convening Authority with significant
powers and responsibilities other than convening military
commissions. Both the government and Al Bahlul agree that
the Convening Authority has the responsibilities of a
constitutional “Officer[ ] of the United States” under the
Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, but they
disagree about whether the Convening Authority is properly
considered a principal or inferior officer. The Convening
Authority’s final decision to “approve, disapprove, commute,
or suspend [a] sentence” is reviewed by the Court of Military
Commission Review (“CMCR”), although the 2006 MCA
provides for review “only with respect to matters of law.” 10
U.S.C. §§ 950b(c)(2)(C), 950f(d) (2006).
In 2007, the Secretary of Defense designated Susan
Crawford as the Convening Authority. Prior to her designation,
Crawford was already serving as a Senior Judge of the Court
of Appeals for the Armed Forces (“CAAF”)2 as well as an
employee serving a three-year term in the Senior Executive
Service. Crawford convened a commission to try Al Bahlul of
three substantive offenses enumerated in the 2006 MCA:
conspiracy to commit war crimes, providing material support
for terrorism, and soliciting others to commit war crimes. See
id. §§ 950u, 950v(b)(25), 950v(b)(28) (2006). The three
charges were predicated on largely the same conduct.
Al Bahlul refused to participate in the proceedings and
instructed his appointed defense counsel to waive objections
and to abstain from any motions. Al Bahlul, however, admitted
every factual allegation against him but one—an allegation that
2
CAAF reviews the military’s intermediate courts. It is the military’s
highest appellate court.
5
he once used a suicide belt. Nonetheless, he pleaded not guilty
on the grounds that American tribunals lack the authority to try
him.
The commission convicted Al Bahlul on all three counts
and sentenced him to life in prison. Crawford approved the
conviction, and the CMCR affirmed. See United States v.
Al Bahlul, 820 F. Supp. 2d 1141 (CMCR 2011). A panel of this
court then vacated all three convictions on the grounds that the
2006 MCA did not authorize prosecutions based on conduct
occurring before 2006 unless the conduct was already
prohibited as a war crime and triable by military commission.
See Al Bahlul v. United States, No. 11-1324, 2013 WL 297726
(D.C. Cir. Jan. 25, 2013).
Sitting en banc, this court upheld Al Bahlul’s conviction
for conspiracy while vacating the two remaining convictions.
See Al Bahlul I, 767 F.3d 1. Because Al Bahlul raised no
objections at trial, we reviewed his newly raised constitutional
objections only for plain error. See id. at 8–11. We held that
Al Bahlul’s ex post facto challenge to his conspiracy
conviction failed under the plain error standard on two
grounds: First, “the conduct for which he was convicted was
already criminalized under 18 U.S.C. § 2332(b),” which
punishes conspiracies to kill United States nationals; second,
“it is not ‘plain’ that conspiracy was not already triable by law-
of-war military commission.” Id. at 18. After vacating the
remaining two convictions under the Ex Post Facto Clause,3 id.
3
We “assume[d] without deciding that the Ex Post Facto Clause
applies at Guantanamo” based on the government’s concession. Al
Bahlul I, 767 F.3d at 18. In so doing, we emphasized that we were
“not to be understood as remotely intimating in any degree an
opinion on the question” of the Clause’s extraterritorial application.
6
at 27–31, the court ordered the case to be remanded, “after
panel consideration, … to the CMCR to determine the effect,
if any, of the two vacaturs on sentencing.” Id. at 31.4
On remand to the CMCR, Al Bahlul argued for the first
time that Crawford’s appointment as Convening Authority was
unlawful, both on statutory and constitutional grounds. He also
argued that intervening Supreme Court precedent required de
novo review of his ex post facto challenge to the conspiracy
conviction. Without remanding to the military commission, the
CMCR rejected these arguments on the merits and determined
that a life sentence continued to be appropriate, reasoning that
the military commission would have imposed the same
sentence even if Al Bahlul had been convicted only of
conspiracy. See Al Bahlul v. United States, 374 F. Supp. 3d
1250 (CMCR 2019). Al Bahlul appealed to this court, and we
have exclusive jurisdiction under 10 U.S.C. § 950g.
Al Bahlul raises six discrete arguments on appeal. First, he
argues that the CMCR applied the wrong harmless error
standard in reviewing his sentence on remand by failing to
determine beyond a reasonable doubt that the military
commission would have imposed the same sentence absent the
two convictions vacated by Al Bahlul I. Second, he claims that
Id. (quoting Petite v. United States, 361 U.S. 529, 531 (1960) (per
curiam)).
4
After Al Bahlul I, a panel of this court again vacated the conspiracy
conviction, this time concluding Al Bahlul had raised meritorious
structural separation of powers objections that could not be forfeited
below. See Al Bahlul v. United States (Al Bahlul II), 792 F.3d 1 (D.C.
Cir. 2015). The court once again took Al Bahlul’s case en banc,
reinstated the conspiracy conviction, and remanded the case to the
CMCR. See Al Bahlul III, 840 F.3d 757.
7
Crawford’s appointment as the Convening Authority violated
the 2006 MCA, which in his view permits the Secretary to
designate only individuals who are already officers of the
United States at the time of the designation. Third, he argues
that Crawford’s appointment violated the Appointments
Clause of the Constitution because the Convening Authority
acts as a principal officer who must be appointed by the
President with Senate approval. Fourth, even if the Convening
Authority is an inferior officer, Al Bahlul contends that
Crawford’s appointment violated the Appointments Clause
because Congress did not vest the appointment of the
Convening Authority in the Secretary by law. Fifth, Al Bahlul
argues that recent Supreme Court precedent requires us to
reexamine his ex post facto challenge to his conspiracy
conviction, this time de novo. Sixth and finally, he raises
several challenges to the conditions of his ongoing
confinement—namely, that he has allegedly been subjected to
indefinite solitary confinement and denied eligibility for
parole.
For the reasons discussed below, only Al Bahlul’s first
argument has merit. In reevaluating Al Bahlul’s sentence, the
CMCR should have asked whether it was beyond a reasonable
doubt that the military commission would have imposed the
same sentence for conspiracy alone. We reject Al Bahlul’s
remaining arguments. Crawford’s appointment as the
Convening Authority was lawful, there is no reason to unsettle
Al Bahlul I’s ex post facto ruling, and we lack jurisdiction in an
appeal from the CMCR to entertain challenges to the
conditions of Al Bahlul’s ongoing confinement. We therefore
affirm in part, reverse in part, and dismiss Al Bahlul’s petition
in part for lack of jurisdiction. We remand for reconsideration
of the sentence under the correct standard.
8
II.
We start with Al Bahlul’s sole meritorious claim.
Al Bahlul argues that the CMCR erred by reassessing his
sentence without remand to the military commission and,
further, by misapplying the harmless error doctrine in
maintaining his life sentence. In Al Bahlul I, the en banc court
directed the CMCR to “determine the effect, if any, of the two”
vacated convictions on Al Bahlul’s sentence. 767 F.3d at 31.
While we conclude that the CMCR had the discretion to
reassess the sentence without remanding to the military
commission, we agree that the CMCR erred by reaffirming
Al Bahlul’s life sentence without first determining that the
constitutional errors were harmless beyond a reasonable doubt.
As an initial matter, the CMCR correctly determined that
it had the authority to assess Al Bahlul’s sentence without
remand. In the analogous court-martial context governed by the
Uniform Code of Military Justice (“UCMJ”), intermediate
military appellate courts may in some circumstances revise
sentences without remand to the court-marital. See Jackson v.
Taylor, 353 U.S. 569, 579–80 (1957). In United States v.
Winckelmann, CAAF held that intermediate military courts
should consider four factors in determining whether to reassess
a sentence without remand: (1) whether the defendant was tried
by military judges; (2) whether there are “dramatic changes” in
the penalty the defendant is exposed to; (3) whether “the nature
of the remaining offenses capture the gravamen of criminal
conduct included within the original offenses”; and (4) whether
“the remaining offenses are of the type that judges of the courts
of criminal appeals should have the experience and familiarity
with to reliably determine what sentence would have been
imposed at trial.” 73 M.J. 11, 15–16 (CAAF 2013).
9
In light of the parallels in text and structure, we have
previously relied on the UCMJ to inform our interpretation of
the statutes governing military commissions. See In re Al
Nashiri, 835 F.3d 110, 122–23 (D.C. Cir. 2016). Here, we
conclude that the CMCR did not err when it applied the
Winckelmann factors in concluding it was appropriate to
evaluate the sentence without remanding to a military
commission. In the court-martial context, a military court has
discretion under Winckelmann to reevaluate a sentence without
remand, and we have held that the military should not be held
to higher procedural standards in the context of military
commissions than it would in the court-martial context. Id. To
the contrary, if a “procedure for courts-martial is considered
adequate to protect defendants’ rights, the same should be true
of the review procedure for military commissions.” Id. at 123.
Whether to remand for reconsideration of a sentence is left
to the military court’s discretion, so we review the CMCR’s
decision only for abuse of discretion. See Winckelmann, 73
M.J. at 12. The CMCR properly applied the Winckelmann
factors, and it was not an abuse of discretion to reevaluate
Al Bahlul’s sentence without remand to the military
commission. After we vacated two of his convictions, Al
Bahlul remained subject to the same maximum sentence—life
in prison—and the one remaining conviction for conspiracy
was predicated on the same conduct as the two that were
vacated. Moreover, as the CMCR noted, “conspiracy to
commit murder is not so novel a crime that” the intermediate
court would be “unable to ‘reliably determine what sentence
would have been imposed at trial’” with respect to Al Bahlul’s
similar crime of conspiracy to commit war crimes, including
the murder of noncombatants. Al Bahlul, 374 F. Supp. 3d at
1273 (quoting Winckelmann, 73 M.J. at 16).
10
In reevaluating Al Bahlul’s sentence, however, the CMCR
applied the wrong legal standard. When an intermediate
military court “reassesses a sentence because of a prejudicial
error, its task differs from that which it performs in the ordinary
review of a case.” United States v. Sales, 22 M.J. 305, 307
(CMA 1986). To “purge[ ]” the sentence “of prejudicial error,”
the new sentence should be less than or equal to the sentence
that would have been delivered by the trier of fact “absent any
error.” Id. at 308. Here, the CMCR concluded that the original
life sentence remained appropriate because any constitutional
error in Al Bahlul’s original sentence was harmless. Yet the
CMCR misapplied well-established harmless error principles.
In ordinary criminal proceedings, an error may be found
harmless if the court determines it had no “substantial and
injurious effect or influence in determining the jury’s verdict.”
United States v. Whitmore, 359 F.3d 609, 622 (D.C. Cir. 2004)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Yet “before a federal constitutional error can be held harmless,
the court must be able to declare a belief that it was harmless
beyond a reasonable doubt.” Chapman v. California, 386 U.S.
18, 24 (1967) (emphasis added). The military courts have
adopted the same standard in the court-martial context for
reviewing whether a constitutional error was harmless, see
Sales, 22 M.J. at 307–08 (concluding that in cases of
constitutional error “the Court of Military Review should be
persuaded beyond a reasonable doubt that its reassessment has
rendered harmless any error affecting the sentence adjudged at
trial”), and the government concedes that the same standard
should apply in the military commission context, Gov’t Br. 28.
We agree. In both the court-martial context and in civilian
criminal proceedings, a constitutional error is considered
harmless only if found to be harmless beyond a reasonable
doubt. As all parties agree, military commissions should be
11
subject to the same harmless error standard that is uniformly
applied in other criminal contexts in cases involving
constitutional errors.
The CMCR purported to rely on the standard articulated
by the Court of Military Appeals in Sales but erred in the
application of the standard. The CMCR maintained that it could
reaffirm the original sentence because the court was “confident
that, absent the error, the [military commission] would have
sentenced the appellant to confinement for life.” Id. at 1273.
Yet nowhere did the court explicitly address whether the errors
were harmless beyond a reasonable doubt. Because the errors
identified by Al Bahlul I were constitutional ex post facto
violations, the CMCR applied the wrong harmless error
standard and therefore abused its discretion. See Cooter & Gell
v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (holding that it is
necessarily an abuse of discretion to apply the wrong legal
standard). We therefore reverse and remand for the CMCR to
redetermine “the effect, if any, of the two vacaturs on
sentencing.” Al Bahlul I, 767 F.3d at 31. Under the harmless
error standard the government concedes applies, the CMCR
must determine the constitutional errors were harmless beyond
a reasonable doubt.
III.
Next, Al Bahlul argues that Crawford’s appointment by
the Secretary as Convening Authority was unlawful on three
grounds. First, he maintains that the 2006 MCA permits the
Secretary to select only individuals who are already serving as
officers of the United States. Alternatively, he argues that the
Convening Authority acts as a principal officer, thus requiring
presidential appointment after Senate confirmation. Finally,
Al Bahlul argues that even if the Convening Authority is an
12
inferior officer, Crawford’s appointment by the Secretary
violated the Appointments Clause, because the 2006 MCA did
not vest the Secretary with the power to appoint an inferior
officer.
Al Bahlul’s challenges require us to interpret both the
Constitution’s Appointments Clause and the 2006 MCA. The
Appointments Clause provides that the President
shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint
Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose
Appointments are not herein otherwise
provided for, and which shall be established by
Law; but the Congress may by Law vest the
Appointment of such inferior Officers, as they
think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
U.S. CONST. art. II, § 2, cl. 2. Courts have long referred to
officers who must be appointed by the President with Senate
confirmation as “principal officers.” See, e.g., United States v.
Germaine, 99 U.S. 508, 509–11 (1878). The statute
establishing the Convening Authority, Section 948h of the
2006 MCA, provides that “[m]ilitary commissions … may be
convened by the Secretary of Defense or by any officer or
official of the United States designated by the Secretary for that
purpose.” 10 U.S.C. § 948h. The Convening Authority has
significant authority, including wide discretion to review a
military commission’s findings and sentences. See 10 U.S.C.
§ 950b(c)(2)(C) (2006) (“[T]he convening authority may, in
13
his sole discretion, approve, disapprove, commute, or suspend
the sentence in whole or in part.”).
Crawford’s appointment was entirely consistent with both
the Constitution and the 2006 MCA: Section 948h allows the
Secretary to select any official of the United States to serve as
the Convening Authority, including mere employees.
Moreover, the Convening Authority is an inferior officer.
Because the 2006 MCA vests the Secretary with the power to
appoint inferior officers by law, Crawford’s appointment was
constitutional.
A.
Al Bahlul argues that Crawford’s appointment as
Convening Authority violated the 2006 MCA because the
Secretary may designate only an “officer or official of the
United States.” 10 U.S.C. § 948h. According to Al Bahlul, the
term “officer” refers only to military officers, while the term
“official” refers to civilian officers. Either way, he contends the
Convening Authority must be a person who is already a
principal or inferior officer appointed through the procedures
prescribed by the Appointments Clause. Al Bahlul argues that
Crawford’s appointment was therefore unlawful because she
was only an employee at the time of her designation. In the
government’s view, the 2006 MCA’s reference to “officer”
includes all officers of the United States in the constitutional
sense, both military and civilian, while the term “official”
refers broadly to other government employees. The MCA thus
allows the Secretary to select an employee to serve as
Convening Authority. The government has the better reading
of the statute. The term “official” includes government
employees who are not “Officers of the United States” in the
constitutional sense. Even assuming Crawford was only an
14
employee at the time of her appointment, a question we do not
decide,5 her designation was consistent with the requirements
of the 2006 MCA.
The 2006 MCA permits the Secretary to designate either
officers or officials of the United States as the Convening
Authority. Against the Appointments Clause background and
in light of the text and structure of the MCA, “official” cannot
be read to mean “civilian officer.” In the constitutional context,
an “officer” is someone who “occup[ies] a continuing position
established by law” and who “exercis[es] significant authority
pursuant to the laws of the United States.” Lucia v. SEC, 138
S. Ct. 2044, 2051 (2018) (quotation marks omitted). An
“official,” on the other hand, can be an employee with less
responsibility. See Lucia, 138 S. Ct. at 2050 (referring to “mere
employees” as “officials with lesser responsibilities who fall
outside the Appointments Clause’s ambit”). Congress regularly
uses the word “official,” a term that extends beyond officers in
5
The parties dispute the significance of the fact that Crawford was
already serving as a senior judge of CAAF. The government
contends that her status as a senior judge made her a principal officer,
which would cure several of the problems alleged by Al Bahlul. See
Gov’t Br. 47–50. Judges of CAAF are appointed by the President
with Senate confirmation; however, “[a] senior judge shall be
considered to be an officer or employee of the United States … only
during periods the senior judge is performing duties [as senior
judge.]” 10 U.S.C. § 942(e)(4). Because we conclude that
Crawford’s appointment was lawful on both statutory and
constitutional grounds regardless of whether she was already a
principal or inferior officer of the United States, we need not address
the significance of her status as a senior judge of CAAF.
15
the constitutional sense, to refer broadly to government
employees.6
By contrast, and consistent with the constitutional
background, Congress generally uses the word “officer” to
refer to principal and inferior officers who must be appointed
in accordance with the Appointments Clause. See Steele v.
United States, 267 U.S. 505, 507 (1925) (explaining that it is
usually “true that the words ‘officer of the United States,’ when
employed in … statutes … have the limited constitutional
meaning”). The 2006 MCA is no exception. The statute refers
throughout to military officers by using explicit language like
“commissioned officer of the armed forces.” See, e.g., 10
6
For example, in a provision of the Military Commissions Act of
2009 governing access to classified information, the government
must submit a declaration signed by any “knowledgeable United
States official possessing authority to classify information.” 10
U.S.C. § 949p-4(a)(1). The statute does not limit the term “official”
to officers of the United States, and employees can possess the
authority to classify information. Similarly, in a statute governing
“military custody for foreign Al-Qaeda terrorists,” Congress
provided that certain procedures do “not apply when intelligence,
law enforcement, or other Government officials of the United States
are granted access to an individual who remains in the custody of a
third country”—again suggesting that the term “official” applies
broadly to those who work for the United States government.
National Defense Authorization Act for Fiscal Year 2012, Pub. L.
No. 112-81, § 1022, 125 Stat. 1298, 1564 (2011). This consistent
usage extends to other parts of the United States Code as well. For
instance, in a provision punishing the bribery of public officials, the
term “public official” includes “an officer or employee or person
acting for or on behalf of the United States, or any department,
agency or branch of Government … in any official function.” 18
U.S.C. § 201(a)(1).
16
U.S.C. § 948i(a) (2006) (“Any commissioned officer of the
armed forces on active duty is eligible to serve on a military
commission.”); id. § 948j(b) (“A military judge shall be a
commissioned officer of the armed forces.”); id. § 949b(b)
(prohibiting the consideration of military commission
performance when “determining whether a commissioned
officer of the armed forces is qualified to be advanced in
grade”). Rather than use the military officer language found
elsewhere in the 2006 MCA, Section 948h uses the more
generic “officer … of the United States,” without qualification.
This language mirrors the text of the Constitution’s
Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, which is a
strong indication that “officer … of the United States” refers to
all officers in the constitutional sense, not just military officers.
See Steele, 267 U.S. at 507; United States v. Mouat, 124 U.S.
303, 307 (1888).
Contrary to this plain meaning, Al Bahlul maintains that
“officer or official of the United States” includes only officers
in the constitutional sense. Yet this interpretation reads the
word “official” out of the statute. See Hibbs v. Winn, 542 U.S.
88, 101 (2004) (“A statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant.”). Al Bahlul attempts to
sidestep the surplusage problem by limiting “officer” to
military officers and “official” to civilian officers. Yet nothing
in the 2006 MCA suggests that Congress used “official” in an
unorthodox sense meaning constitutional “officer.” Similarly,
there is no indication that “officer” means exclusively military
officers in Section 948h. To the contrary, the statute explicitly
refers to military officers in other provisions as “commissioned
officer[s] of the armed forces.” 10 U.S.C. §§ 948i(a), 948j(b),
949b(b) (2006). We decline to limit Section 948h’s use of the
general term “officer” only to military officers, a conclusion
17
inconsistent with other provisions of the 2006 MCA as well as
the ordinary constitutional meaning of “officer … of the United
States.”
Al Bahlul next cites 10 U.S.C. § 101(b)(1), which states
that “‘officer’ means a commissioned or warrant officer” in
Title 10 of the United States Code. This particular definition of
“officer,” however, appears in Section 101(b)’s list of
definitions specifically “relating to military personnel,” not in
Section 101(a)’s general list of definitions, which apply to Title
10 without qualification. In other words, the specialized
definition found in Section 101(b)(1) would apply only if we
first assumed what Al Bahlul is trying to prove—that “officer”
in Section 948h refers only to military personnel. Nothing in
the text of Section 948h suggests that it refers specifically to
military personnel, so the military personnel definition in
Section 101(b)(1) is of little use. Moreover, Section 101(b)(1)
was not enacted as part of the 2006 MCA; it was enacted over
four decades earlier as part of a general definitional statute. See
Pub. L. No. 87-649, 76 Stat. 451, 452 (1962). General
definitional statutes are more easily defeasible by context than
definitions found in the same statute as the language at issue.
See Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 279–80 (2012) (“[A] legislature
has no power to dictate the language that later statutes must
employ. … [W]hen the definition set forth in an earlier statute
provides a meaning that the word would not otherwise bear, it
should be ineffective.”).
Here, the text is unambiguous: The Secretary may
designate either an officer or an official of the United States,
and the term official includes individuals who were mere
employees prior to their designation. Thus, irrespective of
18
whether Crawford was already an officer, her appointment as
the Convening Authority did not violate the 2006 MCA.
B.
In addition to his statutory challenge to Crawford’s
appointment, Al Bahlul raises two constitutional challenges
under the Appointments Clause. We start with his argument
that Crawford’s appointment by the Secretary was
unconstitutional because the Convening Authority acts as a
principal officer and therefore must be appointed by the
President with Senate confirmation. Because other executive
officers directed and supervised the Convening Authority’s
work, we hold that Crawford was an inferior officer and was
therefore properly appointed by the Secretary.
Both the government and Al Bahlul agree that Crawford
acted as an officer of the United States for purposes of the
Appointments Clause. The parties dispute only whether she
acted as a principal or inferior officer. The Supreme Court
addressed the distinction between principal and inferior
officers most directly in Edmond v. United States, 520 U.S. 651
(1997). The Court explained that “the term ‘inferior officer’
connotes a relationship with some higher ranking officer or
officers below the President: Whether one is an ‘inferior
officer’ depends on whether he has a superior.” Id. at 662. More
specifically, “‘inferior officers’ are officers whose work is
directed and supervised at some level by others who were
appointed by Presidential nomination with the advice and
consent of the Senate.” Id. at 663; see also NLRB v. SW Gen.,
Inc., 137 S. Ct. 929, 947 (2017) (Thomas, J., concurring) (“[A]
principal officer is one who has no superior other than the
President.”). Whether an officer is principal or inferior is a
“highly contextual” inquiry requiring a close examination of
19
the specific statutory framework in question. In re Al-Nashiri,
791 F.3d 71, 84 (D.C. Cir. 2015).
In order to determine whether an officer is inferior because
he is supervised by a principal officer, our court looks to three
factors drawn from Edmond: whether there is a sufficient
“degree of oversight,” whether the officer has “final decision-
making authority,” and the extent of the officer’s
“removability.” In re Grand Jury Investigation, 916 F.3d 1047,
1052 (D.C. Cir. 2019). Each of the three factors identified by
Edmond and our subsequent cases indicates that the Convening
Authority is an inferior officer. The Convening Authority’s
decisions are not final and are subject to review by the CMCR;
the Secretary maintains additional oversight by promulgating
rules and procedures; and the Convening Authority is
removable at will by the Secretary.
First, the bulk of the Convening Authority’s decisions are
not final. Instead, they are subject to review by the CMCR. See
10 U.S.C. § 950f (2006). To be sure, the CMCR’s review was
limited to questions of law under the 2006 MCA, id. § 950f(d),
but the same was true in Edmond, which held that the judges of
the Coast Guard Court of Criminal Appeals were inferior
officers even though CAAF can review their factual findings
only to determine whether the evidence underlying a
conviction is sufficient as a matter of law. See 520 U.S. at 665
(noting that CAAF “will not reevaluate the facts” unless there
is no “competent evidence in the record to establish each
element of the offense beyond a reasonable doubt”); United
States v. Leak, 61 M.J. 234, 239 (C.A.A.F. 2005) (“[T]his
Court’s review is limited to questions of law.”). Despite that
limitation, Edmond concluded that the degree of oversight was
sufficient to render judges of the Court of Criminal Appeals
inferior officers for Appointments Clause purposes. Id. at 665–
20
66 (explaining that the narrow scope of the review did not
“render the judges of the Court of Criminal Appeals principal
officers. What is significant is that the judges of the Court of
Criminal Appeals have no power to render a final decision on
behalf of the United States unless permitted to do so by other
Executive officers.”).
Similarly, in Intercollegiate Broadcasting System, Inc, v.
Copyright Royalty Board, we determined that Copyright
Royalty Judges were inferior officers, even though direct
review of the Judges’ factual findings was also severely
limited. 684 F.3d 1332, 1339 (D.C. Cir. 2012) (“[T]he
Register’s power to control the [Judges’] resolution of pure
issues of law plainly leaves vast discretion over the rates and
terms.”). Nonetheless, after our court severed the Judges’
removal protections, we determined that they were inferior
officers. Id. 1341–42 (“Although individual … decisions will
still not be directly reversible, the Librarian would be free to
provide substantive input on non-factual issues. … This,
coupled with the threat of removal satisfies us that the
[Copyright Royalty Judges’] decisions will be constrained to a
significant degree by a principal officer (the Librarian).”). The
power to review even pure legal determinations is “is a non-
trivial limit on” an officer’s decisionmaking such that an
officer may be deemed an “inferior” officer for purposes of the
Appointments Clause. Id. at 1339.
Al Bahlul emphasizes that the CMCR is unable to review
several of the Convening Authority’s consequential powers.
Most importantly, the Convening Authority has the power to
modify charges, overturn a verdict, or commute a sentence, all
of which are effectively unreviewable. See 10 U.S.C.
§ 950b(c)(2)(C) (2006) (“[T]he convening authority may, in
his sole discretion, approve, disapprove, commute, or suspend
21
the sentence in whole or in part.”). Once again, Edmond is
closely analogous: The judges of the Court of Criminal
Appeals have the power to “independently weigh the evidence”
without “defer[ence] to the trial court’s factual findings.” See
520 U.S. at 662 (quotation marks omitted). If they decide to
reverse the factual findings underlying a conviction, thus
overturning the verdict, CAAF has no power to reverse that
decision unless the evidence was insufficient as a matter of law.
See id. at 665; Leak, 61 M.J. at 239. Although the Convening
Authority may make some final decisions, that authority is
consistent, as in Edmond, with being an inferior officer. See
Edmond, 520 U.S. at 662 (emphasizing that the significance of
the authority exercised by an officer does not necessarily
determine whether he is principal or inferior, because all
constitutional officers “exercis[e] significant authority on
behalf of the United States”).
Second, the Secretary maintains a degree of oversight and
control over the Convening Authority’s work through policies
and regulations. The Secretary has the power to prescribe
procedures and rules of evidence governing military
commissions, including rules governing “post-trial
procedures.” 10 U.S.C. § 949a(a). The Secretary has exercised
that authority to regulate and to oversee the conduct of the
Convening Authority in detailed ways. See, e.g., R.M.C.
104(a)(1) (2007) (prohibiting the Convening Authority from
censuring, reprimanding, or admonishing the military
commission, its members, or the military judge); R.M.C. 407
(2007) (prescribing rules for the forwarding and disposition of
charges); R.M.C. 601(f) (2007) (“The Secretary of Defense
may cause charges, whether or not referred, to be transmitted
to him for further consideration, including, if appropriate,
referral.”); see also In re Grand Jury, 916 F.3d at 1052
(concluding that special counsel Robert Mueller was an inferior
22
officer because the Attorney General “has authority to rescind
at any time the Office of Special Counsel regulations”). While
the Secretary’s power to define rules of evidence and other
procedures does not by itself make the Convening Authority an
inferior officer, it provides further evidence that the Convening
Authority’s work is directed by the Secretary and subject to his
supervision.
Finally, the Convening Authority is removable at will by
the Secretary. The 2006 MCA includes no explicit tenure
provisions, and “[t]he long-standing rule relating to the
removal power is that, in the face of congressional silence, the
power of removal is incident to the power of appointment.”
Kalaris v. Donovan, 697 F.2d 376, 401 (D.C. Cir. 1983); see
also Oral Argument at 14:25 (Al Bahlul’s counsel conceding
that “there’s no tenure protection” for the Convening
Authority). As the Supreme Court concluded in Edmond, the
“power to remove officers … is a powerful tool for control.”
Edmond, 520 U.S. at 664.
Al Bahlul argues that the power to remove means little
here because the Convening Authority’s “‘judicial acts’ are
statutorily insulated from” the Secretary’s interference. Reply
Br. 16. The 2006 MCA provides that “[n]o person may attempt
to coerce or, by any unauthorized means, influence … the
action of any convening, approving, or reviewing authority
with respect to his judicial acts.” See 10 U.S.C. § 949b(a)(2)(B)
(2006). Yet such insulation was also present in Edmond: The
judges of the Court of Criminal Appeals are removable at will
only by the Judge Advocate General, who is prohibited from
“influenc[ing] (by threat of removal or otherwise) the outcome
of individual proceedings.” 520 U.S. at 664 (citing UCMJ Art.
37, 10 U.S.C. § 837). In other words, the judicial acts of the
Court of Criminal Appeals, like the judicial acts of the
23
Convening Authority, have some statutory insulation from
interference by the person holding the removal power. The
removal power was nonetheless an important factor in Edmond
in determining that the Court of Criminal Appeals judges are
inferior officers. Similarly, we held in Intercollegiate that
removal at will is a powerful tool for control even when direct
review is limited. See 684 F.3d at 1340–41 (severing removal
restrictions was sufficient to make Copyright Royalty Judges
inferior officers); see also In re Grand Jury, 916 F.3d at 1052–
53 (holding that special counsel Robert Mueller was an inferior
officer in part because he “effectively serve[d] at the pleasure
of an Executive Branch officer” and because the “control
thereby maintained” ensured a meaningful degree of
oversight).
Edmond requires that inferior officers have “some level”
of direction and supervision by a principal officer, 520 U.S. at
663, not necessarily total control. Even inferior officers
exercise discretion and important duties established by law.
The Appointments Clause allows the appointment of such
officers to be vested in a Head of Department so long as the
proper chain of command is maintained. See 1 Annals of Cong.
499 (1789) (statement of James Madison) (explaining that the
President may rely primarily on subordinates because “the
lowest officers, the middle grade, and the highest, will depend,
as they ought, on the President,” establishing a “chain of
dependence”). Here, the factors identified by the Supreme
Court in Edmond establish that the Convening Authority is an
inferior officer. As an inferior officer, Crawford’s appointment
by the Secretary was perfectly consistent with the
Appointments Clause.
24
C.
Even if the Convening Authority is an inferior officer,
Al Bahlul argues that Crawford’s appointment violated the
Appointments Clause because Section 948h does not vest the
Secretary with the power to appoint an inferior officer.
Al Bahlul Br. 28–34. According to Al Bahlul, Section 948h
does no more than describe a duty that can be delegated to
existing constitutional officers. He also argues that the 2006
MCA does not create “a freestanding office” to which an
inferior officer could be appointed. Id. Contrary to Al Bahlul’s
characterizations, the 2006 MCA’s conferral of the power to
designate the Convening Authority was sufficient to vest the
Secretary with the constitutional power to appoint an inferior
officer.
Article II of the Constitution grants Congress broad power
to “vest the Appointment of … inferior Officers” in “the Heads
of Departments.” U.S. CONST., art. II, § 2, cl. 2. Whether to
exercise this power is explicitly left to Congress’s discretion,
to be done “as they think proper.” Id. This power is reinforced
by Article I, which authorizes Congress “[t]o make all Laws
which shall be necessary and proper for carrying into
Execution … Powers vested by this Constitution in the
Government of the United States, or in any Department or
Officer thereof.” Id., art. I, § 8, cl. 18. Thus, “Congress has
plenary control over the … existence of executive offices.”
Free Enterprise Fund v. PCAOB, 561 U.S. 477, 500 (2010);
see also Myers v. United States, 272 U.S. 52, 129 (1926) (“To
Congress under its legislative power is given the establishment
of offices, the determination of their functions and jurisdiction,
the prescribing of reasonable and relevant qualifications and
rules of eligibility of appointees, and the fixing of the term for
which they are to be appointed and their compensation.”).
25
Consistent with the Constitution’s requirement that
Congress vest the power to appoint an officer “by law,” statutes
“repeatedly and consistently distinguish[ ] between an office
that would require a separate appointment and a position or
duty to which one [can] be ‘assigned’ or ‘detailed’ by a
superior.” Weiss v. United States, 510 U.S. 163, 172 (1994).
While the explicit use of the term “appoint” may “suggest[ ]”
whether a statute vests the appointment power, Edmond, 520
U.S. at 658, our court has held that Congress need not use
explicit language to vest an appointment in someone other than
the President. See In re Grand Jury, 916 F.3d at 1053–54; In re
Sealed Case, 829 F.2d 50, 55 (D.C. Cir. 1987). Thus, reading
the statute as a whole, we consider whether Congress in fact
authorized a department head to appoint an inferior officer. Cf.
In re Sealed Case, 829 F.2d at 55 (reading the statute as a whole
and determining it “accommodat[ed] the delegation” of
responsibilities by the Attorney General to a special counsel).
Two features of the 2006 MCA suggest that Congress
exercised its broad power to vest the appointment of the
Convening Authority in the Secretary. First, after establishing
and defining the office of the Convening Authority in
considerable detail, Section 948h specifically provides that the
Secretary will choose the person to fill that office. Second,
because the text and structure of the statute are readily
interpreted as a lawful exercise of Congress’s power to vest the
appointment power in a department head, we decline to adopt
an interpretation that would render the provision
unconstitutional.
The text and structure of the 2006 MCA show that
Congress established a new office—the Convening
Authority—and tasked the Secretary with selecting the person
to fill that office. By referring to the Convening Authority by
name and using the definite article “the,” several sections of the
26
2006 MCA strongly suggest that the Convening Authority is a
distinct office and not simply a duty to be performed by
existing officers. See, e.g., 10 U.S.C. § 948i(b) (2006) (“[T]he
convening authority shall detail as members of the commission
such members … [who] in the opinion of the convening
authority, are best qualified for the duty.”); see also id.
§ 950b(a); id. § 950b(b); § 948l(a). The text of the 2006 MCA
is in stark contrast to the UCMJ, which specifically lists
existing officers who are permitted to perform the function of
convening courts-martial. See 10 U.S.C. § 822. The 2006
MCA, on the other hand, grants the Secretary the power to
designate any officer or official to be “the convening
authority,” a new office created by the statute. Section 948h
authorizes the Secretary to designate the person who will
occupy that office. Because no magic words are required to
grant a department head the power to appoint an inferior
officer, this designation is sufficient for the power to be vested
“by law.”
Al Bahlul’s reading not only runs contrary to the ordinary
meaning of the statute, but would unnecessarily raise serious
constitutional concerns. We decline to read the 2006 MCA in a
manner that would render Crawford’s appointment
unconstitutional when another interpretation is readily
available. See United States v. X-Citement Video, Inc., 513 U.S.
64, 69 (1994) (“[A] statute is to be construed where fairly
possible so as to avoid substantial constitutional questions.”).
As discussed above, the 2006 MCA unambiguously permits the
Secretary to designate as the Convening Authority an
individual who, at the time of the designation, was a mere
employee. Both parties agree, however, that the Convening
Authority exercises the type of significant responsibilities that
properly belong to an officer of the United States. Thus, if
Section 948h does not vest in the Secretary the power to
27
appoint an inferior officer, then the statute permits an employee
to exercise the duties of an officer of the United States without
a constitutional appointment. Nothing in the text or structure of
the statute requires us to interpret it in this way, which flies in
the face of the plain meaning and would raise significant
constitutional doubts. Al Bahlul’s final challenge to
Crawford’s appointment therefore fails.
Reading the statute as a whole, we conclude that in Section
948h Congress exercised its broad power under the
Appointments and Necessary and Proper Clauses to create an
office of the Convening Authority and to vest the power to
appoint this inferior officer in the Secretary. Thus, Crawford’s
appointment satisfied the requirements of the Constitution as
well as the 2006 MCA.
IV.
Next, Al Bahlul asks the court to reconsider his ex post
facto challenge to his conspiracy conviction, a challenge we
reviewed for plain error in Al Bahlul I because it was forfeited
below. See 767 F.3d at 18–27. The law-of-the-case doctrine
dictates that “the same issue presented a second time in the
same case in the same court should lead to the same result.”
LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en
banc) (emphasis omitted). The doctrine bars re-litigation “in
the absence of extraordinary circumstances.” Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). We
may reconsider a prior ruling in the same litigation if there has
been “an intervening change in the law.” Kimberlin v. Quinlan,
199 F.3d 496, 500 (D.C. Cir. 1999). None of these limited
circumstances are present here and therefore we cannot
reconsider our forfeiture ruling in Al Bahlul I.
28
According to Al Bahlul, the Supreme Court’s decision in
Class v. United States fundamentally changed the law of
forfeiture and plain error review. See 138 S. Ct. 798 (2018).
But Class’s holding was relatively narrow. The Supreme Court
held that a criminal defendant who pleads guilty does not
necessarily waive challenges to the constitutionality of the
statute under which he is convicted. Id. at 803–05. The Court
did not, however, hold that such claims are not waivable at all:
The Court addressed only whether a guilty plea constitutes a
waiver “by itself.” Id. at 803; see also id. at 805 (concluding
that a “guilty plea does not bar a direct appeal in these
circumstances”) (emphasis added). The Court twice
emphasized that Class had not waived his objections through
conduct other than his guilty plea, see id. at 802, 807, thus
making clear that the Court was addressing only the effect of
pleading guilty. Al Bahlul did not plead guilty, so Class is
irrelevant to this case.
Moreover, because Class addressed only waiver, it did not
diminish our holding in Al Bahlul I, which involved forfeiture.
See 767 F.3d at 10. “Forfeiture is the failure to make the timely
assertion of a right; waiver is the intentional relinquishment or
abandonment of a known right.” United States v. Miller, 890
F.3d 317, 326 (D.C. Cir. 2018) (quotation marks and alterations
omitted). After Class, two of our sister circuits have held that
constitutional claims should be reviewed only for plain error if
a criminal defendant forfeits his claims before the district court.
See United States v. Rios-Rivera, 913 F.3d 38, 42 (1st Cir.
2019); United States v. Bacon, 884 F.3d 605, 610–11 (6th Cir.
2018). Those decisions are consistent with the “familiar”
principle “that a constitutional right may be forfeited in
criminal as well as civil cases by the failure to make timely
assertion of the right.” Peretz v. United States, 501 U.S. 923,
936–37 (1991). Al Bahlul “flatly refused to participate in the
29
military commission proceedings and instructed his trial
counsel not to present a substantive defense.” Al Bahlul I, 767
F.3d at 10. This forfeiture made it appropriate for our court to
review his ex post facto defense for plain error.
Taking a slightly different approach, Al Bahlul argues that
even if a challenge to the constitutionality of the statute of
conviction would be subject to forfeiture in the Article III
context, it cannot be forfeited in the military context, where any
fundamental defect in the document charging the accused with
a crime deprives the military court of jurisdiction. Al Bahlul
Br. 37–39 (citing United States v. Ryan, 5 M.J. 97, 101 (CMA
1978)). Even assuming arguendo that Al Bahlul has accurately
characterized jurisdictional rules in the military context, he
fails to identify an intervening change in the law that would
support overturning Al Bahlul I: An ex post facto violation has
been a constitutional defect since the Constitution’s
ratification, and every source Al Bahlul cites for the
proposition that military courts view jurisdiction differently
predates Al Bahlul I. See id.
Finally, Al Bahlul argues that we should reconsider the en
banc decision because the Department of Defense has
purportedly changed its position on a material legal question.
In Al Bahlul I, our court held that it was “not obvious” for the
purposes of plain error review “that conspiracy was not
traditionally triable by law-of-war military commission.” 767
F.3d at 27. Al Bahlul contends that the Department of Defense
has since taken a position that is inconsistent with this court’s
conclusion, albeit in non-binding materials such as the Law of
War Manual. Al Bahlul Br. 40–42; see also Department of
Defense, Law of War Manual § 1.1.1 (2015) (“This manual is
not intended to, and does not, create any right … enforceable
at law or in equity against the United States.”). Al Bahlul offers
30
no support for the notion that a party’s change of position—in
this case, one gleaned from non-binding internal documents—
is one of the extraordinary circumstances warranting
reconsideration of a court’s holding under the law-of-the-case
doctrine.7
Furthermore, we rejected this ex post facto challenge in
Al Bahlul I “for two independent and alternative reasons.” 767
F.3d at 18. Al Bahlul contends that the government changed its
position on whether conspiracy was previously triable by
military commissions under the law of war, but his argument
does not undermine this court’s alternative holding that “the
conduct for which he was convicted was already criminalized
under 18 U.S.C. § 2332(b),” id., which punishes conspiracies
to kill United States nationals.
Because Al Bahlul has failed to identify an intervening
change of law or any other extraordinary circumstance, we
decline to revisit the en banc court’s treatment of his ex post
facto challenge to his conspiracy conviction.
V.
Finally, Al Bahlul argues that the manner in which the
government is executing his sentence is unlawful. Specifically,
he claims that the government has unlawfully subjected him to
7
In any event, the Department of Defense maintains that it has not
changed its position on whether conspiracy was historically triable
by military commission, which is supported by the Law of War
Manual. See Law of War Manual § 18.23.5 (stating that “[t]he United
States has taken the position that conspiracy to violate the law of war
is punishable” and that “[t]he United States has” historically “used
military tribunals to punish unprivileged belligerents for the offense
of conspiracy to violate the law of war”).
31
indefinite solitary confinement and that the government’s
current policies wrongfully bar him from parole consideration.
Al Bahlul’s challenges to the ongoing status of his confinement
are outside our jurisdiction on direct appeal, which is limited to
“determin[ing] the validity of a final judgment rendered by a
military commission.” 10 U.S.C. § 950g(a). We “may act …
only with respect to the findings and sentence as approved by
the convening authority and as affirmed or as set aside as
incorrect in law by the [CMCR].” Id. § 950g(d). Because we
have jurisdiction in this posture only to review the validity of
the sentence, and because we may act only with respect to
actions taken by the Convening Authority and the CMCR,
Al Bahlul must bring any challenges to the conditions of his
confinement through a different mechanism—likely a petition
for a writ of habeas corpus. See Aamer v. Obama, 742 F.3d
1023, 1038 (D.C. Cir. 2014).8
In response, Al Bahlul emphasizes that CAAF has
interpreted its analogous jurisdictional provision to permit
consideration on direct review of whether the “approved
sentence is being executed in a manner that offends the Eighth
Amendment.” United States v. White, 54 M.J. 469, 472 (CAAF
2001). We recognize that “military courts are capable of, and
indeed may have superior expertise in, considering challenges
to their jurisdiction over disciplinary proceedings.” New v.
Cohen, 129 F.3d 639, 645 (D.C. Cir. 1997). Yet we always
have an independent obligation to determine whether our
court’s jurisdiction is proper. Arbaugh v. Y&H Corp., 546 U.S.
500, 506–07 (2006). While we sometimes rely on parallels
between the UCMJ and the 2006 MCA, an Article III court
cannot assume jurisdiction by analogy to an Article II court’s
8
Because this court lacks jurisdiction, we express no opinion on the
procedural or substantive merits of such a challenge.
32
interpretation of a different statute. The MCA permits us to act
“only with respect to the findings and sentence as approved by
the convening authority,” 10 U.S.C. § 950g(d), and therefore
we lack jurisdiction to hear Al Bahlul’s challenges to the
conditions of his ongoing confinement.
***
For foregoing reasons, we affirm in part, reverse in part,
and dismiss Al Bahlul’s petition in part for lack of jurisdiction.
We remand for the CMCR to reevaluate Al Bahlul’s life
sentence under the correct harmless error standards, but we
reject Al Bahlul’s remaining challenges.
So ordered.