Monday, November 10, 2014

The Appeal of Ali Al Bahlul

Michel Paradis is the lead attorney representing Bahlul during his appeals.

President Bush signed an executive order authorizing military commissions to try enemy fighters captured in the War on Terror in November 2001. Military Commissions are war crimes trials.

Bahlul was charged under the military commissions created by that executive order in 2004. The case was put on hold while another Guantanamo prisoner, Salim Hamdan, challenged the legality of the commissions. In 2006 the Supreme Court declared that version of the military commissions system was illegal in Hamdan v Rumsfeld.

In 2006 Congress passed the Military Commissions Act, creating the second version of the military commissions.

In 2008 Bahlul was charged with and convicted of conspiracy, solicitation to murder, and material support for terrorism.

In 2011 the Court of Military Commission Review upheld Bahlul’s conviction.

In October 2012 the DC Appeals court decided the appeal of another prisoner in a similar case, Salim Hamdan. Hamdan had been convicted of material support for terrorism, which the Military Commissions Act said was a war crime prior its passage. Hamdan was convicted for actions which took place between 1996 and 2001. 

The US Constitution bars the government from passing ex post facto laws which define crimes that apply to actions made before the law was passed.

The court looked for evidence material support for terrorism was a war crime at the time of Hamdan’s conduct. The relevant statues authorized war crimes courts to try defendants for the crimes of spying, aiding the enemy, and violating “the law of war.” 

The appeals court concluded the “law of war” meant the international law of war, which did not include material support for terrorism.

Hamdan’s conviction was overturned. That decision of the Appeals court is known as Hamdan II to distinguish it from Hamdan v Rumsfeld.

When Bahlul’s appeal made it to the DC Appeals court, the court did not have the ability to overturn the precedent it created in Hamdan II. The government conceded as much and Bahlul’s convictions were overturned. The government asked for all of the judges in the DC Appeals court to hear the case, a rare procedure known as an En Banc appeal. The appeals court agreed.

The government argued that while Bahlul’s crimes did not violate the international law of war, they did violate the US domestic or common law of war. The government did concede, however, that the Ex Post Facto clause of the US Constitution applies to the Guantanamo military commissions. The case was argued in September 2013.

The court released its decision in July 2014.

The En Banc court decided Bahlul had forfeited his right to have his challenge reviewed De Novo, which would mean the court would answer the question directly, because he did not make the argument at his trial. The court said they would instead review the challenge for plain error. In plain error review an appeal can only succeed if the government’s mistake seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The En Banc appeals court ruled insufficient historical precedent existed to show material support for terrorism or solicitation were war crimes under the US common law of war at the time of Bahlul’s conduct. Those convictions were vacated.

The court did find, however, there was sufficient precedent to uphold his conspiracy conviction under plain error review.

The defendants in the Lincoln assassination trial were found guilty in a military commission of conspiracy, among other charges, in 1865.

Eight undercover agents for Nazi Germany were convicted in a military commission in 1942 for entering the United States with the goal of destroying US war industries and facilities. They were convicted of conspiracy, among other charges.

The Supreme Court upheld their conviction in Ex Parte Quirin. The court did not decide the legitimacy of their conspiracy conviction because the court determined at least one of the specifications of one of the other charges qualified as a violation of the law of war.

Two more Nazi spies were convicted of conspiracy among other crimes in a military commission in 1945. That conviction was upheld by an appeals court in 1956.

Based on this historical evidence, the En Banc court upheld Bahlul’s conspiracy conviction.

The court then sent Bahlul’s remaining appeals back to the original appeals court panel.

Oral arguments in that hearing took place in October 2014. Bahlul’s lawyers argue Congress lacks the power under Article 1 of the US Constitution to make crimes triable by military commission that are not international war crimes.

They also argue Article III only allows civilian courts to try purely domestic crimes. Because military commission trials are part of the Executive Branch, Bahlul’s attorneys say allowing them to try domestic crimes poses a direct threat to the separation of powers at the heart of the US Constitution.

The government disagrees. The appeals court has not yet ruled on these challenges.  

If Bahlul’s conspiracy conviction is overturned he will almost certainly continue to be imprisoned at Guantanamo as an enemy combatant under the 2001 AUMF.

I discussed Bahlul’s appeal with David Frakt who represented Bahlul at his trial, but not during his appeals, on Public Occurrences in February 2014. (That part of the video begins at 2 minutes 57 seconds.) 

The national security law blog Lawfare has dedicated two podcasts to covering Bahlul’s appeal. The first covers the En Banc ruling. The second covers the oral arguments in his most recent appeal. Lawfare also has a well-organized collection of key documents in Bahlul’s case. 

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