A federal appeals court on Thursday upheld the conspiracy conviction by military commission at Guantánamo Bay of a man who once served as Osama bin Laden’s personal assistant.
Bahlul’s attorney, Michel Paradis, said he would consult with the captive but expected the next step was to ask the U.S. Supreme Court to consider the challenge.
A divided three-judge panel of the same court threw out the conviction in July 2014, but that decision was set aside after the Obama administration asked the full appeals court to reconsider the case.
The previous ruling could have limited the government’s ability to prosecute terror suspects outside of the civilian justice system.
But in the latest ruling, a majority of judges did not agree on the reasons for the outcome. At issue is whether the Constitution allows Congress to make conspiracy to commit war crimes an offense triable by military commissions, even though conspiracy is not recognized as an international war crime.
Four judges said the Constitution does permit Congress to make such a determination. Judge Brett Kavanaugh, writing for the four, said foreign nations, through international law or otherwise, cannot have “a de facto veto power” over Congress’ determination of which war crimes a military tribunal may consider. Kavanaugh also cited historical precedent going back more than 150 years.
“The two most important military commission precedents in U.S. history — the trials of the Lincoln conspirators and the Nazi saboteurs — were trials for the offense of conspiracy,” he said.
Two other judges voted to uphold the conviction, but did so for different reasons.
In dissent, three judges said “although the government might well be entitled to detain al-Bahlul as an enemy belligerent, it does not have the power to switch the Constitution on and off at will.” They said Bahlul’s prosecution on conspiracy charges “exceeded the scope” of what is allowed for military tribunals under the Constitution.
Steven Vladeck, a University of Texas School of Law professor specializing in national security, said the lack of a majority ruling means military commissions will continue to try similar conspiracy cases “even though uncertainty will persist over the validity of doing so.”
Bahlul was arrested by local officials in Pakistan after the Sept. 11 attacks and turned over to the U.S. military, which transferred him to Guantánamo Bay. The Pentagon said he produced propaganda videos glorifying al-Qaida and assisted with preparations for the Sept. 11, 2001, terrorist strikes.
The 2008 military commission convicted him of soliciting others to commit war crimes, providing material support to a terrorist organization and conspiracy. The appeals court threw out the first two convictions in 2014 and gave Bahlul another chance to contest the conspiracy charge.
The day the court ruled, Bahlul was among 60 prisoners held at the Guantánamo Bay detention center. A spokesman, Navy Capt. John Filostrat, was unable to determine Thursday if the prison’s staff attorney or someone else had furnished the captive with a copy of the 163-page decision.
The Miami Herald’s Carol Rosenberg contributed to this report from the U.S. Navy base at Guantánamo Bay, Cuba
The U.S. court of Appeals decision, here.