Military Commission Conviction Thrown Out

A federal appeals court on Friday set aside the military commission conviction of a Guantanamo Bay detainee [Ali Hamza al-Bahlul] who allegedly produced an al-Qaida recruiting video and served as Osama bin Laden's personal assistant and public relations secretary.

From the Associated Press. The decision came in a 2-1 ruling of the United States Court of Appeals for the District of Columbia Circuit announced today.

Bahlul had originally been convicted of "material support for terrorism, solicitation of others to commit war crimes, and inchoate conspiracy to commit war crimes" by a Military Commission. "Bahlul’s convictions for material support and solicitation" were vacated in 2014 "as violative of the Ex Post Facto Clause of the U.S. Constitution, see Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014), and [the D.C. Circuit] remanded Bahlul’s remaining challenges to his conspiracy conviction to the original panel, see id. at 31."

The Ex Post Facto ruling noted that "material support for terrorism" and "solicitation of others to commit war crimes" were enacted as crimes in the wake of 9-11,but that the acts that were prosecuted by the Military Commission took place before 9-11.

The issue was whether a "law of war" military tribunal had jurisdiction to try the offense of "conspiracy to commit war crimes" which is a violation of U.S. criminal law, but is not a violation of the law of war.  The majority also concluded that this was a question of the subject-matter jurisdiction of the military tribunal that could not be waived or forfeited at trial (where this issue was not raised by Bahlul's lawyers).

Some of the hardest issues presented (like the scope of the "law of war") were stipulated to by the parties or conceded by the government on appeal:

The parties agree that Bahlul was tried by a law of war military commission that had jurisdiction to try charges for offenses against the law of war as defined in Quirin. The government concedes that conspiracy is not a violation of the international law of war. See U.S. Appellee’s Br. to the En Banc Court at 34 (July 10, 2013). The question, therefore, is whether a law of war military commission may try domestic offenses — specifically conspiracy — without intruding on the judicial power in Article III.

The majority of the D.C. Circuit panel found that a "law of war military commission" may not try violations of U.S. criminal laws that are not violations of the international law of war, and that there third conviction of Bahlul must be therefore be vacated.

In doing so, it concluded that the Military Commission exception to the constitutional requirement that all federal crimes be prosecuted in civilian Article III courts, was a narrow one, limited to three specific kinds of military tribunals with historical precedents enumerated by the U.S. Supreme Court in prior cases, that the "law of war" type of military commission was the only one of the three exceptions applicable to this case, and that "law of war" military commissions have jurisdiction only over offenses that both the international community and the United States recognize as violations of the law of war.

This ruling dramatically narrows the utility of Military Commission trials as a means of handling terrorism prosecutions, while not impairing the repeatedly proven capacity of the civilian Article III federal courts to prosecute terrorism cases.

Also, the practical impact of the ruling in the life of Bahlul should not be overstated.  Despite the fact that his military commission convictions have all been overturned on legal grounds, he continues to be detained indefinitely, for the "duration of the hostilities" as an enemy combatant at Guantanamo Bay by the U.S. military.

He will continue to be detained an an enemy combatant until the military decides to release him in its own discretion, or a court determines that the Authorization To Use Military Force enacted in 2001 no longer has any force or effect, because his role, established by the military commission, while not a crime in violation of the international laws of war, clearly establishes that he is an "enemy combatant" as that term has been defined under the AUMF and by the U.S. Supreme Court in its military commission cases.

Thus, this case is more of a repudiation of George W. Bush's military commission's policy and a precedent that may be useful in future times of war and terror hysteria in the nation, than it is a precedent of practical current importance.