Al Bahlul v. United States, 374 F. Supp. 3d 1250

Background

Al Bahlul was tried by a military commission in 2008 and convicted of three offenses; the D.C. Circuit later affirmed his conspiracy-to-commit-war-crimes conviction and vacated convictions for solicitation and providing material support.
The D.C. Circuit remanded to the Court of Military Commission Review (CMCR) with instructions to determine the effect of the two vacaturs on sentencing.
On remand Bahlul argued (1) his sentence is inappropriate for the sole remaining conviction, (2) the Court should rehear his ex post facto challenge to the conspiracy conviction (de novo review), and (3) the commission lacked subject-matter jurisdiction because Convening Authority Susan Crawford was improperly appointed.
Government urged the CMCR to (a) reassess and affirm life confinement, (b) decline a de novo reconsideration of the already‑affirmed conviction, and (c) treat the appointment challenge as non‑jurisdictional and forfeited.
The CMCR held it lacked authority to reopen the affirmed conviction on remand (mandate rule/law-of-the-case) but concluded it may consider jurisdictional challenges and reassess the sentence; it rejected the Appointments Clause and statutory challenge to Crawford and affirmed life confinement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of review on remand — may CMCR reexamine conspiracy conviction?	Bahlul: CMCR has plenary statutory review authority and may perform de novo review of conspiracy (ex post facto) despite D.C. Circuit affirmance.	Government: D.C. Circuit affirmed conviction; mandate and law‑of‑the‑case preclude reopening.	CMCR: De novo review of the affirmed conviction is beyond the remand scope; conviction final.
Jurisdiction — does Crawford’s appointment implicate subject‑matter jurisdiction?	Bahlul: Crawford was improperly appointed (statutory and Appointments Clause), so the commission lacked jurisdiction and charges must be dismissed.	Government: Any appointment defect is non‑jurisdictional and forfeited; remand does not permit new challenges.	CMCR: Appointment status can raise jurisdictional questions; such challenges are timely and reviewable.
Statutory/constitutional validity of Crawford’s appointment	Bahlul: Director/Crawford was a mere employee or a principal officer requiring Presidential nomination and Senate confirmation.	Government: Secretary (or delegate) lawfully designated an "official" under §948h; convening authority may be appointed as an inferior officer/official.	CMCR: Crawford, as Director, was an "official of the United States." The Convening Authority is an inferior officer (subject to Secretary supervision and removal), so Secretary’s appointment was lawful.
Effect of vacatur on sentence — may CMCR reassess sentence and affirm life confinement?	Bahlul: Vacatur of two charges undermines life sentence; cannot be confident life would have been imposed absent vacated convictions.	Government: Remaining conspiracy conviction captures gravamen; sentence reassessment appropriate and life confinement justified.	CMCR: Adopted military‑appellate reassessment framework (Winckelmann factors); reassessed and affirmed life confinement as appropriate and reliably supportable.

Key Cases Cited

Crocker v. Piedmont Aviation, 49 F.3d 735 (D.C. Cir. 1995) (law‑of‑the‑case explained)
LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (law‑of‑the‑case / mandate rule described)
Briggs v. Penn. R.R., 334 U.S. 304 (1948) (mandate rule authority)
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (subject‑matter jurisdiction may be raised at any time)
Edmond v. United States, 520 U.S. 651 (1997) (distinguishing principal vs. inferior officers)
Lucia v. SEC, 138 S. Ct. 2044 (2018) (Appointments Clause principles for adjudicative officials)
Jackson v. Taylor, 353 U.S. 569 (1957) (military appellate courts may reassess sentences)
United States v. Sales, 22 M.J. 305 (C.M.A. 1986) (sentence reassessment principles)
United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (factors for appellate sentence reassessment)