Detained Suspected Terrorists: Trial in Military Courts or Civilian Courts?

18 Pages Posted: 10 Jan 2015

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law

Date Written: January 8, 2015


Military commissions, like detention in wartime, embody the Framers’ challenge in reconciling liberty and security. The U.S. Supreme Court has found that Congress’s war powers authorize establishment of military commissions. However, without proper constraints, military commissions pose tensions with individual rights and the Framers’ architecture of checks and balances.

Recently, the D.C. Circuit, applying a deferential plain error standard, rejected an Ex Post Facto Clause challenge to the military commission inchoate conspiracy conviction of Ali Hamza al Bahlul, a former aide to Osama bin Laden. The D.C. Circuit’s reasoning suggested that, under a less deferential de novo standard of review, inchoate conspiracy convictions for conduct prior to enactment of the Military Commissions Act of 2006 might pose problems, given the lack of recognition under international law for such charges. The legality of trying inchoate conspiracy charges in commissions may reach the Supreme Court. In addition, the Supreme Court may ultimately decide whether inchoate conspiracy charges in commissions are consistent with Article I of the U.S. Constitution, which enumerates Congress’s war powers, and Article III, which protects the independence of the federal courts.

This brief Article applies a functional approach to deciding both the Ex Post Facto Clause and Article III issues. On the Ex Post Facto Clause, the Article asks whether the underlying conduct of the defendant violated international law. The conviction should pass muster if (as in al Bahlul’s case), 1) the charging documents provided actual notice of the alleged violation, and, 2) uncontroverted evidence and findings by members of the commission establish that such a violation in fact occurred.

In the Article III realm, the Article provides a test based on the Supreme Court’s jurisprudence in cases such as Stern v. Marshall and Commodity Futures Trading Commission v. Schor. The test has four parts: 1) Was the tribunal at issue established pursuant to Congress’s Article I powers?, 2) Do the circumstances of adjudication render an Article III tribunal impracticable?, 3) Does a manageable “limiting principle” curb Congress’s power to establish non-Article III tribunals?, and, 4) Has historical practice assigned the issues to be adjudicated to Article III tribunals or to other tribunals, such as state courts, beyond Congress’s reach? After analysis, the Article concludes that Article III poses no bar to commission prosecutions of belligerents in an armed conflict for inchoate conspiracies reasonably related to internationally recognized war crimes.

Suggested Citation

Margulies, Peter, Detained Suspected Terrorists: Trial in Military Courts or Civilian Courts? (January 8, 2015). Harvard Journal of Law and Public Policy, Forthcoming; Roger Williams Univ. Legal Studies Paper No. 154. Available at SSRN:

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

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