A divided appeals court on Friday struck down the conspiracy conviction of a top-level Guantanamo Bay detainee in another blow to the controversial U.S. military commission system.
The U.S. Court of Appeals for the District of Columbia Circuit ruled in its 2-1 decision that conspiracy was not a war crime for which Ali Hamza Ahmad Suliman al Bahlul could be tried by a military commission.
“The history on which the government relies fails to establish a settled practice of trying non-international offenses in law of war military commissions,” Judge Judith W. Rogers noted.
Rogers, who was appointed by President Bill Clinton, joined Judge David S. Tatel, also a Clinton appointee, in ruling that the reach of “military commissions does not extend to the trial of domestic crimes in general, or inchoate conspiracy in particular.”
Last year, for other reasons, the full D.C. Circuit court invalidated Bahlul’s military commission convictions on two other charges.
“This is something I’ve been saying for many years, that they should remove the non-war crimes from the military commissions,” Air Force Reserves Lt. Col. David Frakt, who served as Bahlul’s trial attorney, said in an interview Friday.
Frakt, who noted that Bahlul boycotted the military commission trial as a protest, added that the ruling Friday “continues the trend or pattern of shrinking the potential pool of defendants” subject to the commissions.
The Obama administration now faces the tricky tactical decision of whether to appeal the three-judge panel’s decision to the full 11-member D.C. Circuit, which is now dominated by Democratic appointees, or to go straight to the conservative-dominated Supreme Court, or to take another tack altogether.
“It’s time to stop trying to force these cases into a costly, unnecessary and unreliable offshore military commission system, when we have a reliable and respected federal justice system here at home,” said Daphne Eviatar, senior counsel for Human Rights First.
But Judge Karen LeCraft Henderson, appointed to the bench by President George H.W. Bush, warned that the appellate court’s “timing could not be worse” because of global terrorism dangers, while she likened Bahlul to Nazi Germany’s infamous propaganda minister Joseph Goebbels.
“Conspiracy to commit war crimes is not a purely ‘domestic’ offense, but instead is in accord with the international community’s agreement that those who conspire to commit war crimes can be punished as war criminals,” Henderson wrote in a dissent that was more than twice as long as the majority opinion.
Army Lt. Col. Myles Caggins, Defense Department spokesman for military commissions, said in an e-mail that “the Defense Department is studying the judges’ ruling and exploring all legal options.”
The current Office of Military Commissions operates under the authority of a 2009 law. Individual military commissions consist of a military judge and at least five members, who are military officers and resemble jurors. They operate under rules that differ in some ways from civilian courts; for instance, in the kind of evidence that can be presented.
The military commissions are designed to handle an “enemy belligerent who has engaged in hostilities, or who has purposefully and materially supported hostilities against the United States, its coalition partners or was a part of al Qaeda,” according to the office’s website.
Bahlul served as a personal assistant to Osama bin Laden, producing propaganda videos for al Qaeda and allegedly assisting with preparations for the attacks of Sept. 11, 2001 on the Pentagon and World Trade Center towers.
Three months after 9/11, Bahlul was captured in Pakistan and transferred to Naval Station Guantanamo Bay in Cuba. Military prosecutors charged Bahlul, now 45, with conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes.
A military commission convicted him of all three crimes and sentenced him to life imprisonment.
Last year, the appeals court vacated Bahlul’s convictions on the material support and solicitation charges. In that case, the court ruled that Congress had created those crimes after Bahlul had been apprehended and that trying him violated the Constitution’s prohibition against prosecutions for actions that were not illegal at the time they were undertaken.
The court in the decision issued Friday considered Bahlul’s remaining conviction for conspiracy separately.
In its latest ruling, the court found that Congress had no constitutional authority to add conspiracy to the list of internationally recognized war crimes that could be tried by a military commission. The court’s majority cited precedents ranging from the Civil War to World War II in rendering its opinion.
“Even if Congress has authority to criminalize noninternational offenses,” Rogers wrote, “the government fails to explain why such congressional power to prohibit conduct implies the power to establish military jurisdiction over that conduct.”
Bahlul, a native of Yemen, has been held in a separate section of the Guantanamo detention center reserved for detainees convicted of crimes; most detainees have never been charged with a crime. Caggins said Bahlul will remain in that section for at least seven days until the new court ruling takes effect. Whether he’ll be returned to the general population hasn’t been determined, Caggins said.
Of the eight convictions by Guantanamo military commissions, four have now been fully reversed, Human Rights First said.
Carol Rosenberg of the Miami Herald also contributed to this report