A federal court in Washington, D.C., on Friday canceled the war crimes conviction of an al Qaida video-maker, Guantánamo’s lone convict serving a life sentence.
Now the Obama administration must decide whether to try to save Ali Hamza al Bahlul’s conspiracy conviction at the U.S. Supreme Court, or whether to put him on military trial at Guantánamo again.
The single-page order by a three-judge panel at the U.S. Appeals Court for the District of Columbia Circuit, which “hereby vacated” Bahlul’s military commissions conviction, means government lawyers get at least 90 days to file an appeal.
At issue is whether “conspiracy” — the crime which Bahlul was convicted of by a 2007 military tribunal — was a valid war crime in his case. It a federal crime, but not a violation of the international crimes of war.
Congress legislated “conspiracy” and “providing material support to terror” as war crimes in 2006. But the appeals court in October ruled that a prisoner could not be convicted of “material support,” unless his alleged crime took place after 2006. By that same theory, conspiracy was disqualified, too.
Bahlul, 44, was captured in late 2001 for alleged crimes that took place before then — notably working as Osama bin Laden’s media secretary and sometime bodyguard. Pentagon prosecutors called him a propagandist for al Qaida, and trusted member of the al Qaida founder’s inner circle.
Bahlul mounted no defense at his trial. He admitted to creating an at-times cartoonish laptop computer recruiting video for the terror group. It glorified the October 2000 attack on the USS Cole warship off Yemen in which 17 U.S. sailors died.
Bahlul, a Yemeni, is currently confined to a maximum-security lockup at Guantánamo, a special convicts corridor created to segregate war criminals from the other ordinary detainees. There are three convicts among the 166 captives and it was unclear Friday whether or when Bahlul would be returned to the general, detainee population.
“We’re aware of the court’s order and are in consultation with the U.S. Department of Justice,” said Army Lt. Col. Todd Breasseale, a Pentagon spokesman.