A federal appeals court is reconsidering the legality of the only remaining conviction of a Guantánamo Bay detainee who once served as Osama bin Laden’s personal assistant and media relations secretary.
Ten judges on the U.S. Court of Appeals for the District of Columbia Circuit heard arguments Tuesday after a divided three-judge appeals panel earlier ruled that the case against Ali Hamza al Bahlul is legally flawed because conspiracy is not a recognized war crime under international law.
U.S. troops brought Bahlul, a Yemeni now in his mid 40s, to the U.S. Navy base in Cuba on Jan. 11, 2002, the day the prison opened.
That June ruling could have limited the government’s ability to prosecute terror suspects outside of the civilian justice system. The Obama administration successfully appealed the ruling to the full court.
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The government argues that Congress acted lawfully in making conspiracy a crime that can be tried by the special military tribunals the George W. Bush administration created following the Sept. 11 attacks.
To help make their case, lawyers for the Justice Department have reached back for legal precedents set during some of the most turbulent periods in American history, including the tribunals held under martial law for those who conspired with John Wilkes Booth to assassinate President Abraham Lincoln.
According to the U.S. military, bin Laden personally tasked Bahlul, a Yemeni, with creating a video celebrating al-Qaida’s bomb attack against the USS Cole Navy destroyer in 2000, which killed 17 American sailors. Bahlul also helped prepare martyr wills for some of the Sept. 11 hijackers, though his defense lawyers argue there was no evidence at trial that he knew in no advance of the plot to hijack jetliners and crash them into the World Trade Center and Pentagon.
In the past, U.S. military commissions have been used almost exclusively to try cases involving war crimes, such as the prosecutions of Japanese officers who tortured prisoners of war during World War II.
Without evidence of direct participation in attacks against the United States, defense attorney Michel Paradis argued it was unconstitutional and out of step with international law to try Bahlul before a military tribunal. As far as the law is concerned, Paradis suggested his client was no different than civilian defendants indicted for conspiracy in fraud or drug cases.
“This is plain vanilla, ordinary conspiracy,” Paradis told the judges on Tuesday. “The crime of agreeing to a crime has to be tried by a jury.”
Deputy Solicitor General Ian Gershengorn, representing the government, was peppered with questions from the judges about what precedents would be set if they allowed Bahlul’s conspiracy conviction to stand. If military commissions could be used to try crimes that don’t violate international law, what are the limits?
Gershengorn offered that offense must be committed by an enemy belligerent and have some connection to an ongoing armed conflict against the United States. That response, which could potentially include a wide array of crimes, appeared to trouble several of the judges.
“The real question is whether the court can find a way to rule for the government without endorsing such a potential expansion in the permissible jurisdiction of military commissions,” said Steven Vladeck, an American University law professor who is following the case. “Whether the government wins likely depends on whether or not such a narrow way to resolve this case appears.”
After the Sept. 11 attacks, Bahlul was arrested in Pakistan and turned over to the U.S. military. Two military commissions were later convened at Guantánamo Bay to try Bahlul for conspiracy, but those panels were dissolved because of legal challenges in other cases.
In 2008, charges were re-issued against Bahlul, and a military commission convicted him of conspiracy, soliciting others to commit war crimes and providing material support to a terrorist organization. Bahlul branded the war court illegitimate and ordered his U.S. Air Force defense attorney to mount no defense. He was sentenced to life imprisonment and remains the lone convict at Guantánamo Bay prison.
Last year, the appeals court threw out Bahlul’s convictions for providing material support for terrorism and soliciting others to commit war crimes, leaving only the conspiracy conviction now at issue.
So far, four of the eight Guantánamo detainees convicted by military commissions have had convictions overturned on appeal. If Bahlul’s last remaining conviction is thrown out, Vladeck suggested similar conspiracy convictions against three more of the detainees could be in legal jeopardy.
Whichever way the judges rule in Bahlul’s case, the losing side is considered likely to seek an appeal before the U.S. Supreme Court.