Ali Hamza Ahmad al Bahlul v. United States ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 2023 Decided July 25, 2023
No. 22-1097
ALI HAMZA AHMAD SULIMAN AL BAHLUL,
PETITIONER
v.
UNITED STATES OF AMERICA,
RESPONDENT
Consolidated with 22-1173
On Petitions 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 Todd E. Pierce and Alexandra Link.
Eric L. Lewis was on the brief for amicus curiae
Concerned Musicians in support of petitioner.
John S. Summers, Andrew M. Erdlen, and Alexander J.
Egervary were on the brief for amici curiae The Center for
Victims of Torture, et al. in support of petitioner.
2
Danielle S. Tarin, Attorney, U.S. Department of Justice,
argued the cause for respondent. With her on the brief were
Matthew G. Olsen, Assistant Attorney General for National
Security, Steven M. Dunne, Chief, and Joseph F. Palmer,
Attorney.
Before: KATSAS and PAN, Circuit Judges, and SENTELLE,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PAN.
PAN, Circuit Judge. Petitioner Ali Hamza Ahmad
Suliman al Bahlul (“Bahlul”) served as the personal assistant
and public-relations secretary to Usama bin Laden, the leader
of al Qaeda and mastermind of the 9/11 terrorist attack against
the United States. Members of a military commission
convicted Bahlul of conspiracy to commit war crimes,
providing material support for terrorism, and solicitation of
others to commit war crimes. The members sentenced Bahlul
to imprisonment for life, and the U.S. Court of Military
Commission Review (“CMCR”) affirmed. On Bahlul’s first
appeal to this court, we upheld the conspiracy charge but
vacated the other convictions as unconstitutional under the Ex
Post Facto Clause. The CMCR subsequently reaffirmed
Bahlul’s remaining conspiracy conviction and life sentence,
twice. In these petitions for review of the CMCR’s latest
decision, Bahlul asks us to vacate his conspiracy conviction or,
alternatively, to remand his case for resentencing by military-
commission members. We deny the petitions.
3
I. BACKGROUND
Bahlul is a Yemeni national who traveled to Afghanistan
in the late 1990s and joined al Qaeda. He attended an al Qaeda
training camp and pledged a loyalty oath to Usama bin Laden,
who assigned him to al Qaeda’s media operations. After
suicide bombers targeted a U.S. naval ship, the U.S.S. Cole, in
October 2000, bin Laden directed Bahlul to produce a
propaganda video celebrating the attack. The video that Bahlul
created included footage of the bombing, as well as calls for
jihad against the United States. Al Qaeda distributed the film
widely and in several languages as part of its recruiting efforts.
Bahlul then became bin Laden’s personal assistant and
secretary for public relations. In that role, Bahlul arranged for
two of the 9/11 hijackers to make loyalty oaths to bin Laden
and helped prepare their “martyr wills” — propaganda
declarations to be used after the attacks. In the days before
9/11, Bahlul traveled with bin Laden and maintained bin
Laden’s media equipment. On the day of the attacks, Bahlul
ensured that bin Laden could listen to media reports about
them. Afterward, Bahlul fled to Pakistan, where he was
captured in December 2001 and turned over to the United
States. Since 2002, Bahlul has been detained at the U.S. Naval
Base at Guantanamo Bay, Cuba.
We have described Bahlul’s extensive legal proceedings
in past decisions. See, e.g., Al Bahlul v. United States (Al
Bahlul II), 767 F.3d 1, 6–8 (D.C. Cir. 2014) (en banc). Here,
we focus on the procedural history relevant to this appeal.
In 2003, President George W. Bush designated Bahlul as
eligible for trial by military commission under the 2001
Authorization for Use of Military Force (“AUMF”) and 10
U.S.C. § 821. Military prosecutors charged Bahlul with
4
conspiracy to commit war crimes in 2004. But that prosecution
was suspended when the Supreme Court held in Hamdan v.
Rumsfeld, 548 U.S. 557 (2006), that the procedures governing
the military commissions convened under the AUMF and
§ 821 rendered those commissions unlawful.
After Hamdan, Congress enacted the Military
Commissions Act (“MCA”) of 2006, Pub. L. No. 109–366, 120
Stat. 2600 (2006). See also Military Commissions Act of 2009,
Pub. L. No. 111-84, 123 Stat. 2190, 2574 (2009) (amending
MCA). That Act “establishe[d] procedures governing the use
of military commissions to try alien unprivileged enemy
belligerents for violations of the law of war and other offenses
triable by military commission.” 10 U.S.C. § 948b(a); see also
id. § 948b(a) (2006). The MCA enabled military commissions
to “be convened by the Secretary of Defense or by any officer
or official of the United States designated by the Secretary for
that purpose.” Id. § 948h. Pursuant to that authority, in 2007,
the Secretary of Defense designated Susan Crawford, a Senior
Judge of the U.S. Court of Appeals for the Armed Forces
(“CAAF”), as the convening authority.
In 2008, Crawford convened a new military commission
under the MCA to try Bahlul. This time, prosecutors charged
him with conspiracy to commit war crimes, 10 U.S.C.
§ 950v(b)(28) (2006); providing material support for terrorism,
id. § 950v(b)(25) (2006); and solicitation of others to commit
war crimes, id. § 950u (2006). The conspiracy and solicitation
charges alleged seven object crimes: murder of protected
persons, attacking civilians, attacking civilian objects, murder
in violation of the law of war, destruction of property in
violation of the law of war, terrorism, and providing material
support for terrorism.
5
Bahlul refused to participate in his trial before the military
commission. He waived all pretrial motions, made no
objections, asked no questions of prosecution witnesses, and
presented no opening argument, defense, or closing argument.
The members of the commission convicted Bahlul of all three
charges. They made written findings that Bahlul had conspired
to commit and solicited all seven alleged object offenses. They
also specifically found that he had committed ten of eleven
alleged overt acts, including pledging a loyalty oath to bin
Laden; preparing the U.S.S. Cole propaganda video “to solicit,
incite and advise persons to commit terrorism”; acting as
personal and media secretary to bin Laden; arranging for two
of the 9/11 hijackers to “pledge fealty” to bin Laden and
preparing their martyr wills; and researching the economic
effect of 9/11 on the United States for bin Laden. Al Bahlul II,
767 F.3d at 8 n.2. Bahlul was acquitted of only one overt act
— wearing a suicide belt to protect bin Laden.
During sentencing, Bahlul did not question the
prosecution’s witnesses or raise objections. He did give an
unsworn statement, admitting that he worked with bin Laden
and explaining that he was a “media person in al Qaeda” who
“put some clips in the videotape that [the members] . . .
watched.” Sentencing Transcript at 968:11–18, 969:9–10,
973:22–974:6. The members of the military commission
imposed a life sentence.
The commission submitted the findings and sentence to
the convening authority, as required by 10 U.S.C. § 950b(a).
Crawford approved them in their entirety. At Bahlul’s request,
Crawford referred his case for review by the CMCR, pursuant
to 10 U.S.C. § 950c(a). The CMCR affirmed his convictions
and sentence in full. See United States v. Al Bahlul, 820 F.
Supp. 2d 1141, 1158–59 (USCMCR 2011).
6
A panel of this court vacated Bahlul’s convictions based
on Hamdan v. United States, 696 F.3d 1238, 1247–48 (D.C.
Cir. 2012), which held that the MCA did not authorize
prosecution for conduct committed before its enactment in
2006. See Al Bahlul v. United States (Bahlul I), No. 11-1324,
2013 WL 297726, at *1 (D.C. Cir. Jan. 25, 2013) (per curiam).
Sitting en banc, this court overruled Hamdan, and thus Bahlul
I, but reinstated only Bahlul’s conspiracy conviction. Bahlul
II, 767 F.3d at 5, 11. We determined that the conspiracy
conviction did not violate the Ex Post Facto Clause and
remanded for a panel of this court to hear Bahlul’s remaining
challenges to that conviction. Id. at 18–27, 31.
A panel again vacated Bahlul’s conspiracy conviction,
determining that the MCA improperly permitted Article I
tribunals to try conspiracy cases. Al Bahlul v. United States
(Bahlul III), 792 F.3d 1, 3 (D.C. Cir. 2015). Sitting en banc
once more, we reversed the panel decision and reinstated
Bahlul’s conspiracy conviction. Al Bahlul v. United States
(Bahlul IV), 840 F.3d 757, 759 (D.C. Cir. 2016) (en banc). We
remanded to the CMCR “to determine the effect, if any, of the
two vacaturs [of the material-support and solicitation
convictions] on sentencing.” Bahlul II, 767 F.3d at 31.
The CMCR reaffirmed Bahlul’s life sentence for
conspiracy. It concluded that the military commission would
have “sentenced the appellant to confinement for life” even
“absent the error” with respect to his convictions for providing
material support to terrorists and solicitation of others to
commit terrorism. Al Bahlul v. United States, 374 F. Supp. 3d
1250, 1273 (USCMCR 2019). The CMCR also determined
that life imprisonment was “an appropriate punishment for the
sole remaining conviction.” Id. at 1271–74. In addition, the
CMCR rejected a new argument made by Bahlul: that the
military court lacked jurisdiction to try him because the
7
convening authority was not properly appointed under the
Appointments Clause. Id. at 1255, 1265, 1268–71.
On appeal of that decision to this court, Bahlul contended
that the CMCR erred in its resentencing decision, both by re-
examining his sentence itself instead of remanding to a military
commission, and by misapplying the harmless-error doctrine.
Al Bahlul v. United States (Bahlul V), 967 F.3d 858, 865 (D.C.
Cir. 2020). This court held that “it was not an abuse of
discretion [for the CMCR] to reevaluate Al Bahlul’s sentence
without remand to the military commission.” Id. at 866. But
we vacated Bahlul’s sentence because the CMCR had failed to
determine whether any constitutional error potentially
affecting the sentence was harmless beyond a reasonable
doubt. Id. at 866–67 (citing Chapman v. California, 386 U.S.
18, 24 (1967) and United States v. Sales, 22 M.J. 305, 307–08
(C.M.A. 1986)). We rejected Bahul’s argument that his
military commission was unlawfully convened because
Crawford was a “principal officer” under the Appointments
Clause but was not appointed by the President with the advice
and consent of the Senate. Id. at 870; see also U.S. CONST. art.
II, § 2, cl. 2. Employing three factors drawn from Edmond v.
United States, 520 U.S. 651 (1997), we determined that
Crawford was an inferior — not a principal — officer. Bahlul
V, 967 F.3d at 870–73 (citing In re Grand Jury Investigation,
916 F.3d 1047, 1052 (D.C. Cir. 2019)). We therefore
remanded solely “for the CMCR to redetermine ‘the effect, if
any, of the two vacaturs on sentencing’” under the appropriate
harmless-error standard. Id. at 867 (quoting Bahlul II, 767 F.3d
at 31). Bahlul’s petition for a writ of certiorari was denied. Al
Bahlul v. United States, 142 S. Ct. 621 (2021).
The CMCR once again affirmed Bahlul’s life sentence. Al
Bahlul v. United States (Bahlul VI), 603 F. Supp. 3d 1151, 1183
(USCMCR 2022). “Taking into consideration the entire record
8
of appellant’s trial and sentencing,” the CMCR declared that it
was “certain beyond a reasonable doubt that, absent the
constitutional errors, the members would have sentenced
appellant to confinement for life.” Id. at 1172. The CMCR
also rejected Bahlul’s renewed argument that the commission
lacked jurisdiction because Crawford’s appointment violated
the Appointments Clause. Id. at 1157–60. This time, Bahlul
relied on the Supreme Court’s intervening decision in United
States v. Arthrex, Inc., 141 S. Ct. 1970 (2021). Bahlul VI, 603
F. Supp. 3d at 1155. The CMCR determined that nothing in
Arthrex conflicted with its earlier decision upholding the
appointment of Crawford as the convening authority. Bahlul
VI, 603 F. Supp. 3d at 1157–60.
Bahlul sought reconsideration or rehearing en banc,
raising the argument that the CMCR’s decision impermissibly
relied on evidence procured through Bahlul’s torture or abuse.
The en banc CMCR denied reconsideration. In a separate
opinion, one judge commented that Bahlul cited nothing in the
record demonstrating that the evidence on which the CMCR
relied was the product of Bahlul’s torture or abuse.
Bahlul appeals the CMCR’s latest decision to reinstate his
life sentence. We have jurisdiction under 10 U.S.C. § 950g(a).
II. ANALYSIS
Bahlul raises three familiar challenges: (1) that the
military commission lacked jurisdiction to hear his case
because the convening authority was unconstitutionally
appointed; (2) that the CMCR erred by not remanding his case
to the military commission for resentencing and instead
reevaluating his sentence itself; and (3) that the CMCR erred
by determining that the military-commission members would
have sentenced him to life imprisonment even absent the
9
constitutional errors at his trial. He adds an argument that the
CMCR erred by considering evidence gathered through his
abuse and torture in determining that his life sentence remained
appropriate.
As a threshold legal issue, we review the CMCR’s
determination that the convening authority was properly
appointed de novo. See Aamer v. Obama, 742 F.3d 1023, 1038
(D.C. Cir. 2014); EV v. United States, 75 M.J. 331, 333
(C.A.A.F. 2016). 1 We review the CMCR’s sentencing
decisions for abuse of discretion. See Bahlul V, 967 F.3d at
866–67; 10 U.S.C. § 950g(d) (“The United States Court of
Appeals for the District of Columbia Circuit . . . shall take
action only with respect to matters of law, including the
sufficiency of the evidence to support the verdict.”).
A. Appointments Clause
“The Appointments Clause of the Constitution lays out the
permissible methods of appointing ‘Officers of the United
States,’ a class of government officials distinct from mere
employees.” Lucia v. SEC, 138 S. Ct. 2044, 2049 (2018)
(quoting U.S. CONST. art. II, § 2, cl. 2). The Clause provides
that the President:
shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint
1
The government previously argued before the CMCR that the
Appointments Clause issue was not live because it was not
jurisdictional. See Al Bahlul, 370 F. Supp. 3d at 1259. The
government does not renew that argument here. Accordingly, we
need not consider whether the Appointments Clause issue implicated
the subject-matter jurisdiction of the military commission, as our
standard of review would be de novo either way. See Aamer, 742
F.3d at 1028, 1038.
10
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. “By requiring the joint
participation of the President and the Senate, the Appointments
Clause was designed to ensure public accountability for both
the making of a bad appointment [of a principal officer] and
the rejection of a good one.” Edmond, 520 U.S. at 660. It is
“designed to assure a higher quality of appointments,” and is
“among the significant structural safeguards of the
constitutional scheme.” Id. at 659.
All agree that the convening authority is an officer under
Article II. See Bahlul V, 967 F.3d at 870. The only dispute is
whether she is a “principal” officer, who must be appointed by
the President with advice and consent of the Senate, or an
“inferior” officer, who may be appointed by the President or
the Secretary of Defense acting alone. See Buckley v. Valeo,
424 U.S. 1, 132 (1976); In re Grand Jury Investigation, 916
F.3d at 1052. If the convening authority is a principal officer,
Crawford was improperly appointed by the Secretary, and the
remedy would be a new trial before a military commission
convened by a constitutionally appointed convening authority.
See Lucia, 138 S. Ct. at 2055 (“[T]he ‘appropriate’ remedy for
an adjudication tainted with an appointments violation is a new
‘hearing before a properly appointed’ official.” (quoting Ryder
v. United States, 515 U.S. 177, 183, 188 (1995))).
11
We previously decided that the convening authority is an
inferior officer. See Bahlul V, 967 F.3d at 870. Under the law-
of-the case doctrine, a court should not reopen issues that it
decided earlier. See Wye Oak Tech., Inc. v. Republic of Iraq,
24 F.4th 686, 697 (D.C. Cir. 2022). This is particularly so
when a subsequent appeal is heard by a different panel. United
States v. Philip Morris USA Inc., 801 F.3d 250, 257 (D.C. Cir.
2015). Because we lack authority to overrule a prior panel’s
decision, “‘an even stronger than usual version of the law-of-
the-case doctrine,’ law of the circuit, governs.” Id. (emphasis
original) (quoting LaShawn A. v. Barry, 87 F.3d 1389, 1395
(D.C. Cir. 1996) (en banc)). “[W]hen both doctrines are at
work, the law-of-the-circuit doctrine should increase a panel’s
reluctance to reconsider a decision made in an earlier appeal in
the same case.” LaShawn A., 87 F.3d at 1395.
We may depart from the law of the case and from circuit
precedent, however, based on an intervening Supreme Court
decision. See Aamer, 742 F.3d at 1032 (noting that panel need
not follow law of the circuit if inconsistent with Supreme Court
precedent); Wye Oak Tech., 24 F.4th at 697–98 (explaining that
courts should not follow law of the case when faced with an
intervening change in law). For a panel to reconsider a prior
decision of this court in favor of a new Supreme Court
precedent, the Court’s intervening decision must “effectively
overrule[], i.e., ‘eviscerate[]’” the law of our circuit. United
States v. Williams, 194 F.3d 100, 105 (D.C. Cir. 1999) (quoting
Dellums v. Nuclear Reg. Comm’n, 863 F.2d 968, 978 n.11
(D.C. Cir. 1988)), abrogated on other grounds by Apprendi v.
New Jersey, 530 U.S. 466 (2000); accord Nat’l Inst. of Mil.
Just. v. Dep’t of Def., 512 F.3d 677, 682 n.7 (D.C. Cir. 2008).
In other words, the “intervening Supreme Court precedent
must clearly dictate a departure from circuit law.” Old
Dominion Elec. Coop. v. FERC, 892 F.3d 1223, 1232 n.2 (D.C.
Cir. 2018) ((citing Dellums, 863 F.2d at 978 n.11)). For
12
example, we did not revisit a prior decision where a new
Supreme Court opinion merely indicated “doubts” about the
constitutionality of the statutory scheme at issue, and where the
Court left “unresolved several questions that le[d] us to wonder
about the precise scope of its holding.” Williams, 194 F.3d at105–06.
Bahlul argues that the Supreme Court’s decision in United
States v. Arthrex, Inc., 141 S. Ct. 1970 (2021), compels us to
reevaluate our ruling in Bahlul V that the convening authority
is an inferior officer. Our consideration of that argument
hinges on whether Arthrex effectively overruled or eviscerated
Bahlul V. Because Bahlul’s interpretation of Arthrex is merely
arguable, we conclude that Arthrex does not “clearly dictate” a
departure from our prior decision. Old Dominion Elec. Coop.,
892 F.3d at 1232 n.2. We therefore may not reconsider it here.
In Bahlul V, we relied on Edmond v. United States, 520
U.S. 651 (1997), to hold that the convening authority,
Crawford, was an inferior officer. In Edmond, the Supreme
Court considered three factors to determine that judges of the
Coast Guard Court of Criminal Appeals, an intermediate court
in the military-justice system, were inferior officers: degree of
oversight, removability, and final decision-making authority.
520 U.S. at 662–65. First, the Court explained that “[w]hether
one is an ‘inferior’ officer depends on whether he has a
superior” and whether one’s “work is directed and supervised
at some level by” principal officers. Id. at 662–63. The Coast
Guard judges were inferior because they were supervised by
two sets of principal officers: the Coast Guard’s Judge
Advocate General, who prescribed the judges’ rules and
policies, and the CAAF. Id. at 664; see also 10 U.S.C. § 866(f).
Second, the Court found it significant that the Judge Advocate
General could remove the judges without cause, so long as it
was not an “attempt to influence . . . the outcome of individual
13
proceedings.” Edmond, 520 U.S. at 664 (citing 10 U.S.C.
§ 837). Third, the judges did not have final decision-making
authority: The CAAF had the power to review the judges’
rulings if the Judge Advocate General ordered it, if the CAAF
granted a petition for review from the accused, or if the accused
received a death sentence. Id. at 665. The CAAF’s review was
limited to determining whether “there is some competent
evidence in the record to establish each element of the offense
beyond a reasonable doubt” without reevaluating the facts. Id.But, the Court opined, “[w]hat is significant is that the judges
of the [Coast Guard] 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.” Id.Our opinion in Bahlul V specifically applied the three
factors described in Edmond to conclude that Crawford was an
inferior officer. 967 F.3d at 870–73. First, we explained that
a principal officer, “the Secretary [of Defense,] maintains a
degree of oversight and control over the Convening
Authority’s work through policies and regulations,” including
evidentiary standards and post-trial procedures. Id. at 872. 2
Next, we noted that “the bulk of the Convening Authority’s
decisions are not final” and “are subject to review by the
CMCR,” which is also composed of principal officers. Id. at
871. Finally, we explained that “the Convening Authority is
removable at will by the Secretary,” id. at 872, except that “no
person may attempt to coerce or, by any unauthorized means,
influence . . . the action of any convening, approving, or
2
See also id. (citing R.M.C. 104(a)(1) (2007) (prohibiting
convening authority from censuring, reprimanding, or admonishing
military commission, members, or judge); R.M.C. 407 (2007)
(prescribing forwarding and disposition of charges); and 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.”)).
14
reviewing authority with respect to his judicial acts,” id. at 873
(quoting 10 U.S.C. § 949b(a)(2)(B) (2006)). All those factors
weighed in favor of concluding that the convening authority
was an inferior officer. Id.
According to Bahlul, the Arthrex decision departed from
the three-factor approach of Edmond and Bahlul V by elevating
one factor — final decision-making authority — over the
others. In Arthrex, the Supreme Court determined that the
Patent Trial and Appeal Board’s Administrative Patent Judges
were unconstitutionally appointed under the Appointments
Clause. 141 S. Ct. at 1985. In Bahlul’s view, the Court
determined that the Patent Judges were principal officers solely
because they could make final, unreviewable decisions on
patentability, which “is incompatible with their appointment by
the Secretary to an inferior office.” Pet’r’s Br. 26 (quoting
Arthrex, 141 S. Ct. at 1985). Bahlul thus reads Arthrex to hold
that an officer’s ability to exercise final decision-making
authority is sufficient, by itself, to render her a principal officer.
Here, he contends, the convening authority exercises that type
of significant final authority. For instance, the convening
authority may “approve, disapprove, commute, or suspend the
sentence in whole or in part,” 10 U.S.C. § 950b(c)(2)(C) (2006)
(current version at id. § 950b(c)(3)(C)); “(A) dismiss any
charge or specification by setting aside a finding of guilty
thereto; or (B) change a finding of guilty to a charge to a
finding of guilty to an offense that is a lesser included offense
of the offense stated in the charge,” id. § 950b(c)(2)(C)(3)
(2006). Those decisions are left to her “sole discretion,” id.
§ 950b(c)(1), although the Secretary of Defense may issue
regulations about their timing and process, see id. § 949a(a);
see also Bahlul V, 967 F.3d at 871 (“[T]he bulk of the
Convening Authority’s decisions are not final.”). Bahlul
insists that, under the approach followed in Arthrex, the
convening authority must be a principal officer.
15
Yet Arthrex does not “clearly dictate a departure” from our
prior ruling that the convening authority is an inferior officer.
Old Dominion Elec. Coop., 892 F.3d at 1232 n.2. Despite the
language in Arthrex emphasized by Bahlul, that case still
considered each of the three factors that were central to
Edmond: degree of oversight and removability, as well as final
decision-making authority. Arthrex, 141 S. Ct. at 1980–83.
The Arthrex Court compared the degree of supervision of the
Patent Judges to that of the Coast Guard judges in Edmond,
explaining that the Patent and Trademark Office Director had
“administrative oversight” powers over the Patent Judges. Id.
at 1980 (quoting Edmond, 520 U.S. at 664) (citing 35 U.S.C.
§§ 3(a)(2)(A), (b)(6), 6(c), 314(a), 316(a)(4)). Indeed, the
Court explicitly “reaffirm[ed] and appl[ied] the rule from
Edmond that the exercise of executive power by inferior
officers must at some level be subject to the direction and
supervision of an officer nominated by the President and
confirmed by the Senate.” Arthrex, 141 S. Ct. at 1988. The
Court also examined removability, concluding that the Patent
Judges are not “‘meaningfully controlled’ by the threat of
removal . . . because the Secretary can fire them . . . only ‘for
such cause as will promote the efficiency of the service.’” Id.
at 1982 (quoting Seila Law LLC v. CFPB, 140 S. Ct. 2183,
2203 (2020) and then 5 U.S.C. § 7513(a)). To be sure, the
Court emphasized that “[w]hat was ‘significant’ to the outcome
[in Edmond] — review by a superior executive officer — is
absent” for the Patent Judges. Id. at 1981 (quoting Edmond,
520 U.S. at 665). The Patent Judges have unreviewable power
to “issue decisions on patentability” or, in other words, “‘to
render a final decision on behalf of the United States’ without
any . . . review by their nominal superior or any other principal
officer in the Executive Branch.” Id. at 1980–81 (quoting
Edmond, 520 U.S. at 665). But despite assigning the most
weight to the factor of un-reviewability, the majority opinion
16
in Arthrex expressly disclaimed that its decision “set forth an
exclusive criterion” to distinguish principal officers from
inferior ones. Id. at 1985 (quoting Edmond, 520 U.S. at 661). 3
Bahlul’s argument that Arthrex determined that the Patent
Judges were principal officers based solely on their final
decision-making authority is plausible. Indeed, one of the
3
Notably, Arthrex also confined its ruling to “the context of
adjudication.” Arthrex, 141 S. Ct. at 1986. It is not clear whether
the role of the convening authority as challenged in this case falls
within that narrow context. Generally, adjudication involves the
particularized determination of individual rights, resulting in an
order. See Safari Club Int’l v. Zinke, 878 F.3d 316, 332 (D.C. Cir.
2017) (citing Londoner v. City and Cnty. of Denver, 210 U.S. 373(1908)); cf. 5 U.S.C. § 551(6), (7) (defining adjudication as “agency
process for the formulation of an order” and an order as “the whole
or a part of a final disposition, whether affirmative, negative,
injunctive, or declaratory in form, of an agency in a matter other than
rule making but including licensing” under the Administrative
Procedure Act). We have noted that the MCA is a “system enacted
to adjudicate” the rights of enemy belligerents. In re Al-Nashiri, 835
F.3d 110, 122–23 (D.C. Cir. 2016); see also Ortiz v. United States,
138 S. Ct. 2165, 2170 (2018) (describing military court martial
system as one “to adjudicate charges against service members”). But
the role of the convening authority in that process is very different
from the adjudicative one assigned to the patent judges in Arthrex or
the Coast Guard judges in Edmond. The convening authority under
the MCA has duties that are not adjudicative, such as convening a
military commission and selecting its members. See 10 U.S.C.
§§ 948h, 948i. It is those functions that Bahlul appears to challenge
in this case, claiming that the military commission that tried him was
improperly convened by Crawford and so lacked jurisdiction. Unlike
the petitioners in Arthrex and Edmond, Bahlul’s main argument is
not that his case was adjudicated by an unconstitutionally appointed
officer. It is therefore unclear that Bahlul’s claim falls within “the
context of adjudication” that was addressed in Arthrex. 141 S. Ct. at
1986.
17
dissenting opinions in that case asserted, “[T]he majority
suggests most of Edmond is superfluous: All that matters is
whether the Director has the statutory authority to individually
reverse Board decisions.” Arthrex, 141 S. Ct. at 2002 (Thomas,
J. dissenting); see also id. at 1997 (Breyer, J. dissenting) (“In
my view, today’s decision is both unprecedented and
unnecessary.”); Jennifer Mascott and John F. Duffy, Executive
Decisions After Arthrex, 2021 Sup. Ct. Rev. 225, 228 (2021)
(“Arthrex seems to mark a significant shift.”). But that reading
of the case is “not sufficiently clear” to justify overturning the
law of the circuit, Williams, 194 F.3d at 102, given that the
Court discussed all three Edmond factors and explicitly denied
that it relied on any “exclusive criterion” to hold that the Patent
Judges were principal officers. Arthrex, 141 S. Ct. at 1985
(quoting Edmond, 520 U.S. at 661). Bahlul has not shown that
Arthrex “clearly” disavows or “eviscerates” the Edmond
factors on which Bahlul V relied. Therefore, we have no
occasion to reconsider our determination that the convening
authority is an inferior officer.
B. Resentencing
Bahlul also challenges the CMCR’s resentencing decision,
arguing: (1) that the CMCR erred in resentencing Bahlul itself,
instead of remanding to a military commission; and (2) that the
CMCR erred in reaffirming his life sentence. We find his
arguments unconvincing.
1. Consideration by the CMCR
We held in Bahlul V that the CMCR could properly assess
Bahlul’s sentence without remanding to a military commission.
18
See Bahlul V, 967 F.3d at 865–66. 4 Nothing has changed that
conclusion. Instead of relying on our prior holding, however,
the CMCR considered again whether to send the case to a
military commission for resentencing by applying the four
factors described in United States v. Winckelmann, 73 M.J. 11,
15–16 (C.A.A.F. 2013), see Bahlul VI, 603 F. Supp. 3d at
1168–71, i.e.: “(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.’” Bahlul V, 967 F.3d at 866 (quoting
Winckelmann, 73 M.J. at 15–16).
As in its previous decision, the CMCR explained that the
first factor is of “limited relevance to military commissions as
there is no option for sentencing by military judge alone.”
4
Bahlul asserts that “this Court did not hold that resentencing
was not required because CMCR’s weighing of the Winckelmann
factors was correct.” Pet’r’s Reply at 23. He says that “[t]his Court
held that CMCR ‘properly applied’ the Winckelmann factors – in the
sense that it was correct to apply the Winckelmann factors.” Id.(quoting Bahlul V, 967 F.3d at 865–67). That is inaccurate. We
explicitly stated that “it was not an abuse of discretion to reevaluate
Al Bahlul’s sentence without remand to the military commission.”
Bahlul V, 967 F.3d at 866. Similarly, Bahlul insists that we ordered
the CMCR to apply a “beyond a reasonable doubt” standard in its
evaluation of the Winckelmann factors on remand. But since we
never held that the CMCR had to consider those factors anew, we
certainly did not determine that it needed to make that finding
beyond a reasonable doubt. See Bahlul V, 967 F.3d at 866–67.
19
Bahlul VI, 603 F. Supp. 3d at 1169. 5 It also again concluded
that the second, third, and fourth factors weighed against
remand because Bahlul continued to face the same maximum
sentence; the “gravamen” of all three crimes for which he was
tried was the same; the evidence concerning the vacated
convictions remained relevant; and conspiracy to commit war
crimes, like other forms of conspiracy, fell within the CMCR
judges’ experience to consider. Id. at 1169–71. Thus, as in
Bahlul V, the CMCR properly resentenced Bahlul. See Bahlul
V, 967 F.3d at 866.
Bahlul argues that the CMCR should have weighed in his
favor the second Winckelmann factor — concerning “dramatic
changes” in applicable penalties — because the nature of his
penalty has been altered by new factors, including his
ineligibility for parole and his placement in solitary
confinement. But there has been no change with respect to
Bahlul’s eligibility for parole — he had no right to parole at the
time he was first sentenced by the commission. See Pet’r’s Br.
43 (citing a parole policy enacted after his sentencing, Exec.
Order No. 13567, 76 Fed. Reg. 13277 § 1(a) (Mar. 7, 2011));
see also Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 7 (1979) (“There is no constitutional or inherent
right of a convicted person to be conditionally released before
the expiration of a valid sentence.”). As for his solitary
confinement, that it is not a part of his sentence and so we lack
5
Bahlul contends that the CMCR’s analysis of the first
Winckelmann factor varied from its previous decision, and that it
erred by determining the factor “ha[d] limited relevance.” Bahlul VI,
603 F. Supp. at 1169. We see no meaningful difference, however,
between this determination and the CMCR’s previous conclusion
that the first factor was not dispositive, particularly when it again
concluded that the remaining factors weighed against resentencing
by members of a military commission. See Bahlul V, 967 F.3d at
866; Al Bahlul, 374 F. Supp. 3d at 1273.
20
jurisdiction to consider it here. See Bahlul V, 967 F.3d at 877
(“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.”); 10 U.S.C. § 950g(d).
Bahlul’s remaining objections to resentencing by the
CMCR repeat the arguments he raised in earlier appeals, and
fail for the reasons stated in Bahlul V.
2. Reaffirmance of Life Sentence
When we reversed and remanded in Bahlul V, we
instructed the CMCR to apply the standard of “harmless[ness]
beyond a reasonable doubt” to determine whether Bahlul’s life
sentence remained appropriate for the conspiracy charge,
despite his trial on additional charges that should not have been
brought. Bahlul V, 967 F.3d at 866–67. The CMCR applied
the correct standard and concluded that Bahlul’s sentence for
conspiracy would have been the same, irrespective of his
erroneous trial on the vacated counts charging him with
material support and solicitation of terrorism. Bahlul VI, 603
F. Supp. 3d at 1171–75.
The record supports the CMCR’s decision. Because the
gravamen of the dismissed offenses was reflected in the
conspiracy charge, the CMCR correctly reasoned that the
evidence introduced at trial would have been essentially the
same for the conspiracy count alone. Id. at 1172; see also
United States v. Torres, 60 M.J. 559, 570 (A.F. Ct. Crim. App.
2004) (determining sentence remained appropriate because
military judge would have been presented with the same
evidence absent vacated charges); cf. United States v. Boone,
49 M.J. 187, 197–98 (C.A.A.F. 1998) (explaining resentencing
was necessary where constitutional error circumscribed the
available record evidence). In returning the verdicts, the
21
military commission members made explicit findings about the
objects of the conspiracy and the overt acts committed in its
furtherance. See Bahlul VI, 603 F. Supp. 3d at 1172–73. The
members determined that the conspiracy’s “objects included
murder of protected persons, murder in violation of the law of
war, and attacking civilians,” and that Bahlul’s overt acts
encompassed pledging fealty to Usama bin Laden, creating
propaganda for al Qaeda, “arrang[ing] for a pledge of fealty or
bayat to Usama bin Laden by two of the 9/11 terrorists” and
“prepar[ing] the propaganda declarations, or martyr wills” of
the same 9/11 terrorists. Id. In short, Bahlul’s conspiracy
conviction encompassed the same extraordinarily serious
conduct that supported the dismissed counts of solicitation and
lending material support to terrorists. See United States v.
Moffeit, 63 M.J. 40, 41–42 (C.A.A.F. 2006) (considering
severity of conduct underlying remaining charge). The CMCR
also noted that Bahlul showed no remorse at sentencing,
instead making a statement that praised the 9/11 attacks and al
Qaeda. See Bahlul VI, 603 F. Supp. 3d at 1174. Thus, the
CMCR did not abuse its discretion in finding any error related
to the vacated counts harmless beyond a reasonable doubt.
Bahlul’s arguments to the contrary are unavailing. Bahlul
argues that the CMCR erroneously inferred from the record
that he played a role in the 9/11 attacks. Pet’r’s Br. 54–56. But
the CMCR relied on the detailed factual findings by the
members of the military commission, who concluded that
Bahlul facilitated martyr wills and fealty pledges for terrorists
involved in 9/11. See Conviction Worksheet 3–4, 7–8; Bahlul
VI, 603 F. Supp. 3d at 1172–73. In determining what the
commission members would have done absent the
constitutional errors of charging Bahlul with material support
and solicitation, there is no better evidence than the members’
own findings of fact.
22
Bahlul also asserts that when the CMCR resentenced him,
it relied on a speculative theory of the case that was never
presented to the commission members, urging that the focus of
the government’s case at trial was its solicitation charge.
Pet’r’s Br. 56–57 (citing United States v. Bennitt, 74 M.J. 125,
128 (C.A.A.F. 2015) and United States v. Miller, 67 M.J. 385,
388 (C.A.A.F. 2009)). That argument is belied by Bahlul’s
conviction on the charge of conspiracy, and the detailed factual
findings that supported that conviction. The cases cited by
Bahlul are inapposite, for they involve resentencings where the
intermediate appeals court improperly determined that a
defendant could have been convicted of an offense that was not
charged or relied on a theory that was not presented at trial. See
Bennitt, 74 M.J. at 127–128; Miller, 67 M.J. at 388–89.
Finally, Bahlul raises a new argument based on an
amendment to the MCA that was enacted after his trial, but
before the briefing in his first appeal to the CMCR was
complete. That amended provision prohibits any evidence
“obtained by the use of torture or by cruel, inhuman, or
degrading treatment” from being admitted in trials by a military
commission. 10 U.S.C. § 948r(a) (emphasis added); see also
Military Commissions Act of 2009, Pub. L. No. 111-84, 123Stat. 2190, 2580 (2009). Under the amended provision
[a] statement of the accused may be admitted in
evidence in a military commission under this
chapter only if the military judge finds (1) that
the totality of the circumstances renders the
statement reliable and possessing sufficient
probative value; and (2) that (A) the statement
was made incident to lawful conduct during
military operations at the point of capture or
during closely related active combat
engagement, and the interests of justice would
23
best be served by admission of the statement
into evidence; or (B) the statement was
voluntarily given.
Id. § 948r(c) (cleaned up). Those requirements are stricter than
the rules that were in place at the time of Bahlul’s trial. See id.
§ 948r (2006). Bahlul claims that most of the trial evidence
against him was drawn from his custodial statements, and that
such evidence was improperly admitted because the military
judge did not make the findings that the amended provision
requires. Thus, Bahlul argues, we should order resentencing
by the military commission to ensure that his sentence is not
based on evidence procured by torture.
The government responds that Bahlul cannot raise this
argument because he has not previously objected to the
introduction of the evidence that allegedly was unlawfully
obtained — either at trial or at any time before this most recent
remand. Gov’t’s Br. 26–30. We agree. “[W]here an argument
could have been raised on an initial appeal, it is inappropriate
to consider that argument on a second appeal following
remand,” absent exceptional circumstances like a change in
law between appeals. United States v. Henry, 472 F.3d 910,
913 (D.C. Cir. 2007) (quoting Nw. Ind. Tel. Co. v. FCC, 872
F.2d 465, 470 (D.C. Cir. 1989)); accord United States v. Brice,
748 F.3d 1288, 1289 (D.C. Cir. 2014). Bahlul could have
raised the change in law, or other similar objections, in his
initial appeal to the CMCR or during the extensive proceedings
since then. He did not. On the most recent remand to the
CMCR, he questioned the admissibility of the statements in his
opening brief but did not argue that § 948r barred their
admission until his reply. See Appellant Br. 7, 44 n.4, United
States v. Bahlul, No. 20-002 (USCMCR Dec. 20, 2021);
Appellant Reply Br. 4, United States v. Bahlul, No. 20-002
(USCMCR Jan. 26, 2022). And previously, he noted that much
24
of the trial evidence was based on his custodial statements but
also did not cite § 948r or argue that the military commission
should not have considered those statements. See, e.g.,
Appellant Br. 7–8, United States v. Bahlul, No. 16-002
(USCMCR Jan. 2, 2017). Accordingly, his arguments on this
point are forfeited.
* * *
For the foregoing reasons, we affirm the CMCR’s
decision. We decline to revisit our prior ruling that the
convening authority is an inferior officer because the
intervening Supreme Court case cited by Bahlul does not
clearly dictate a departure from our circuit’s precedent.
Finding no error or abuse of discretion in Bahlul’s
resentencing, we also uphold his sentence of life imprisonment.
So ordered.