Appeals court upholds conspiracy conviction of Guantanamo Bay detainee

Ali Hamza Ahmad Suliman al-Bahlul

By ANN E. MARIMOW | The Washington Post | Published: October 20, 2016

WASHINGTON — The nation's second-highest court on Thursday upheld the conviction of a Guantanamo Bay detainee, siding with the government in a case that tested the power of the military tribunal system.

In a 6-to-3 ruling, the U.S. Court of Appeals for the District of Columbia Circuit upheld the conspiracy conviction of Ali Hamza al-Bahlul, a former media secretary to Osama bin Laden.

Four judges agreed that military commissions in general have the authority to handle domestic crimes such as conspiracy that are not international war crimes. There was, however, no clear majority with judges filing four separate concurring opinions.

The D.C. Circuit has been grappling with questions about the reach of military commissions for six years. The case was argued last December before a full panel of 10 judges.

The court agreed to rehear the case after an earlier three-judge panel of the same court threw out the remaining charge against Bahlul, a Yemini man and propagandist for al-Qaida, who was convicted in a military tribunal at Guantanamo in 2008.

In upholding the conviction, Judge Brett M. Kavanaugh said Congress is not limited by international law from allowing military commissions to try domestic offenses typically heard by civilian federal courts.

"The Constitution does not give foreign nations (acting through the international law of war or otherwise) a de facto veto over Congress's determination of which war crimes may be tried by U.S. military commissions."

Kavanaugh was joined by Judges Janice Rogers Brown and Thomas Griffith.

The votes of Judges Robert Wilkins and Patricia Millett, both appointed by President Barack Obama, were critical to reaching a majority that also included Judge Karen LeCraft Henderson. But Wilkins and Millett ruled only on the specific facts of al-Bahlul's conviction, without taking up the broader question on the role of military commissions.

In a 67-page dissent, Judge David Tatel said the prosecution could have charged al-Bahlul with recognized war crimes or charged him in a civilian federal court.

Even though al-Bahul has admitted serving as bin Laden's personal secretary and making al Qaida recruitment videos, Tatel said the "challenges of the war on terror do not necessitate truncating the judicial power to make room for a new constitutional order."

Tatel was joined by Judges Judith Rogers and Cornelia Pillard.

Had the full court invalidated the conspiracy charge in its ruling Thursday, it would have made it more difficult for the government to prosecute low-level detainees at Guantanamo.

Stephen Vladeck, a University of Texas law professor who filed a brief on behalf of Bahlul, said the case is likely to be appealed to the Supreme Court.

Without a clear majority rationale in the ruling, Vladeck said the opinion does "nothing to settle the basic, fundamental questions that have plagued the commissions since their inception."

At oral arguments before the full court, Justice Department lawyers urged the judges to "be wary of setting outer bounds" that curtail military tribunals at Cuba's Guantanamo Bay.

Bahlul's lawyer said that the government's position would allow military tribunals to usurp the traditional role of civilian courts in handling domestic crimes.

"The political branches have replaced judicial power with a military trial chamber," Bahlul's attorney, Michel Paradis, told the court late last year.

The court's Chief Judge Merrick Garland participated in oral arguments, but recused himself from the decision because of his pending nomination to the Supreme Court.

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