Sex Education: Rules without context

 

 

Playwright's Prologue: This play is not a recommendation that sex is right for you and your partner. It's a satirical examination of how we explain sex to children and young adults.

In health class, students are warned of the dangers of pregnancies and STDs. In college, posters and PSAs give young adults a list of dos and don’ts about rape and consent, with no room for any ambiguity in-between. In church, we are told certain kinds of sex displease God.

There is no discussion of the role sex plays in relationships. The decisions made by actual people about when and how to have sex are also missing. This play attempts to satirize talking about sex without actually discussing the role sex or abstinence plays in actual people’s lives.

[Lacey and John sit at John’s place talking before a date. Lacey is 22 and John is 23.]

 

 

John: Are you sure you’re ready?

 

Lacey: Yes.

 

John: I just don’t want us to rush into this too quickly.

 

Lacey: Don’t worry; I’ve thought about it a lot. I really do want to sleep with you.

 

John: ok, how about tonight after the movie?

 

Lacey: I can’t wait.

 

[Lacey kisses John]

[Flashback to Lacey as a young girl in bible school. She is 13-years-old with her hair in pigtails. She sits cross-legged on the floor while staring dreamily at a boy a few seats away.]

 

 

Teacher: And the seventh commandment tells us not to commit adultery. Can anyone tell me what adultery is?

 

Kevin (age 13): I can.

 

Teacher: Yes Kevin.

 

Kevin: It’s when you have sex with someone else’s husband or wife.

 

Teacher: That’s right Kevin, but it's so much more than that. Even when you think about having sex with someone, you’ve committed adultery in your heart.

 

 

[Lacey starts paying attention.]

 

 

It’s very difficult not to have those thoughts, but we’re all sinners. 

 

That’s also why it’s a sin to have sex before you’re married. The person you are having sex with will one day be someone else’s husband or wife.

 

These laws were created by God, not man. The commandments Moses received from God are the most important rules he has given us, and we should do our best to follow them.

[Lacey is in bed with John having noisy, exhilarating sex.] 

 

 

John: That’s right.

 

Lacey: Aaaahhh [deap breath] Ohhhhh

 

 

[Breathing becomes more intense as they approach climax.]

 

 

Lacey: I need a drink.

 

John: What!? [Pauses]

 

Lacey: My throat is dry.

 

John: Ok, but hurry back, I don’t want to lose momentum.

 

 

[Lacey gets up, pours a glass of water, drinks, and leaves the glass next to the bed.]

 

 

John: Ready?

 

Lacey: For what?

 

John: To get started again.

 

Lacey: [surprised] Sure, if you want to.

 

 

[John and Lacey begin having sex again. They build up to climax.]

 

 

Lacey: I need a tissue.

 

John: What!!??

 

Lacey: Sorry, my nose is clogged.

 

John: Yeah, and so is my penis. Can’t it wait?

 

Lacey: No, it can’t.

 

John: Sigh…. Fine.

 

 

[Lacey gets up, blows her nose, throws away the tissue, returns to bed, and lays down to sleep.]

 

 

John: Lacey, you can’t be ready for bed, now. Can you??

 

Lacey: What, you want to go again?

 

John: Obviously.

 

Lacey: Fine, one more time.

 

 

[John and Lacey have sex, approach climax]

 

 

Lacey: I’m hungry.

 

John: It can wait a couple more minutes.

 

Lacey: I don’t think it can.

 

John: Sorry, not this time.

 

 

[John holds Lacey down, climaxes]

 

 

Lacey: John — that was rape.

[Flashback to John in Health Class. He is a freshman in High School staring out the window to a bright sunny day.]

 

 

Teacher: Rape is when you have sex with someone without their consent. But what is consent? If someone is under the influence of alcohol or drugs, they can’t consent. If someone is unconscious because they’re sleeping or passed out, they can’t consent. 

 

According to the law, if someone is under 16, they can’t legally consent to have sex.  Consent should always be verbal; it should never be assumed. Consent can be removed at any time during the act of sex. And sex without consent, is rape. Susan, do you have a question?

 

 

[John looks forward.]

 

 

Susan: Yes, ma’am. Don’t a lot of people drink alcohol before they have sex? My parents do, all the time.

 

 

[Class laughs.]

 

 

Susan: [To the class] oh, grow up. We are here to learn about sex, we should be able to talk about these kinds of things.

 

Teacher: You’re right Lacey, on both counts. But you should always get someone’s consent before either of you start drinking. That way, you know it's your partner that made the decision, not the alcohol. If you don’t get permission ahead of time, it’s rape.

[John and Lacey lie in bed.]

 

 

John: What do you mean that was rape?

 

Lacey: I withdrew consent, and sex without consent is rape.

 

John: That’s absurd.

 

Lacey: I told you I wanted to stop.

 

John: And I told you I wanted to have sex, and you said yes. You knew what I meant by that.

 

Lacey: But that’s not how consent works. Someone can withdraw consent at any time, even right before climax.

 

John: But why would you want to?

 

Lacey: I told you, it violates my religious beliefs.

 

John: What are talking about? I don’t remember you telling me that.

 

Lacey: It was a month ago, remember?

[One month ago. John is playing Tetris on his phone as Lacey returns from the bathroom in a restaurant.]

 

 

Lacey: John, can I talk to you about something?

 

John: [Still looking intensely at his phone] Sure.

 

Lacey: You know the 10 commandments in the Bible?

 

John: Yeah.

 

Lacey: I’ve thought a lot about them. Don’t you think it’s strange how Moses died before reaching the Promised Land because he upset God?

 

John: I guess.

 

Lacey: Don’t you think that would have an effect on the covenant between God and the Israelites delivered through the 10 commandments?

 

John: I suppose.

 

Lacey: I glad we see eye to eye on this.

[John and Lacey back in bed]

 

 

John: What does that have to do with sex!?!?

 

Lacey: It’s like Moses ascended the mountain, but never reached the peak. [Pause]

 

God let Moses die before reaching the Promised Land because he wouldn’t follow God’s command to talk to a rock. That was obviously a sign from God that Moses wasn’t a righteous prophet. This canceled the laws God communicated through him.

 

John: I have never heard that interpretation of the scripture before.

 

Lacey: That’s because it’s the basis for a new Christian church, the Saturday Saints.

 

John: You mean the Latter Day Saints.

 

Lacey: No, that’s the Mormon Church. We don’t believe Joseph Smith was a legitimate prophet, but we don’t have anything against the Mormons either.

 

John: So you’re with the people who go from door to door telling people Saturday is the real Sabbath?

 

Lacey: No, those are the Seventh Day Adventists. Our church is much more secretive then that.

 

John: So who are the Saturday Saints?

 

Lacey: It all began 3 years ago when the topic came up in my bible study group. 

[Three years ago, Lacey’s hometown]

 

 

Lacey: So how is college going for everyone?

 

Beth: Really well.

 

Susan: Me too. Hey, I want to bring up a topic where I might not see eye to eye with our church.

 

Lacey: Sure, don’t worry, this isn't a judging place, and intellectual rigor is an important part of faith.

 

Susan: Don’t either of you ever think about having sex before marriage? I know our parents and the reverend say it’s a sin, but everyone does it, and it doesn't harm anyone.

 

Beth: The church always throws out the same explanation, it’s forbidden by the seventh commandment.

 

Susan: But why should a commandment banning adultery have any implication for pre-marital sex? No one is married or cheating on anyone.

 

Lacey: They would be cheating on their future husband or wife.

 

Susan: But that’s a stupid interpretation!

 

Lacey:  Centuries of church teaching can’t just be wrong. But, there is one thing I have wondered.

 

Susan: [Seeing a valuable opportunity] Yes.

 

Lacey: Moses never made it to the Promised Land. What does that mean for the 10 commandments?

 

Beth: What are you getting at?

 

Lacey: God obviously wasn't happy with his chosen prophet.

 

Susan: That meant God nullified the 10 commandments!

 

Lacey: Which means God is just fine with pre-marital sex.

 

Beth: But our parents still believe the 10 commandments are valid. They’re still going to expect us to be virgins on our wedding nights.  

 

Susan: So we just won’t climax.

 

Beth: What?

 

Susan: If we don’t climax, we can tell our parents we are virgins and still have sex before marriage.

 

Lacey: Brilliant, but we need a name for our new gospel.

 

Susan: I now declare the birth of a new church, the Saturday Saints. Young men and women will be invited to join our new church to understand what God believes they should do between the sheets.

[Back to John and Lacey in bed]

 

 

John: So this is all so you can tell your parents you’re a virgin?

 

Lacey: And the church.

 

John: But if you want to have sex, why not just have sex? Who cares what your parents and church thinks?

 

Lacey: You can’t just abandon your community. You have to have deference to your parents and religious leaders, even when they insist on dictating the personal details of your life.

 

John: It seems you are really letting other people make major decisions for you.

 

Lacey: But I care about them and don’t want to disappoint them.

 

It’s just a shame you won’t be a virgin on your wedding night. Oh well, at least I didn’t climax.

 

John: So until the day you're married, you'll be torn between your own desires and the desires of your family and church.

 

Lacey: Yes.

 

John: I suppose we should get some rest then.

 

Lacey: See you in the morning John.

 

John: Good night Lacey.

 

Lacey: Good night John.

[Stage lights off]

 

 

But is it a War Crime?

Developments in the trial of Al Nashiri

(This is my second article on Al Nashiri. The first covered the charges against him, the publicly-available evidence in his case, and his claims of innocence. This article covers a key question in his trial, whether his alleged crimes took place as part of an armed conflict.)

Al Nashiri is charged with one of the most significant terrorist attacks in American history, the bombing of the USS Cole.

The USS Cole

Credit: FBI

A total of 17 American Navy sailors died in the attack.

But there is something unusual about his trial.

It will not take place in a traditional courtroom.

Instead, it will be held in a war crimes trial, known as a military commission, at the US military prison at Guantanamo.

Military Commission Seal

Credit: www.mc.mil

Much of the recent pre-trail activity in his case asks whether the charges against him are, in fact, war crimes.

If not, the charges cannot be tried in a military commission.

The Defense

Al Nashiri’s defense team argues the bombing of the USS Cole did not take place during a war, which means the attack could not have been a war crime.

President Clinton responded to the bombing in a radio address to the nation. He described it as a peacetime terrorist attack.

"This tragic loss should remind us all that even when America is not at war, the men and women of our military risk their lives every day, in places where comforts are few and dangers are many," Clinton said. 

Congress did not recognize the attack as taking place during a war, either.

Nashiri’s lawyers say the first time Congress approved the use of the president’s war powers against Al Qaeda was in the Authorization for the Use of Military Force (AUMF), following the 9/11 attacks. The president signed the AUMF on September 18, 2001.

The attack on the USS Cole took place on October 12, 2000.

Nashiri’s lawyers say President Bush did not extend the AUMF to Yemen at any time prior to Al Nashiri’s capture. Al Nashiri was arrested in either October or November 2002.

His defense also observes Congress did not recognize the existence of an armed conflict in Yemen until 2009, when it expressed concern about a rebel insurgency in Yemen that began in 2004.

The Prosecution

The prosecution, on the other hand, argues the US and Al Qaeda were engaged in an armed conflict at the time of the Cole bombing. The prosecution presents the following facts to support their case.

In 1996 Osama Bin Laden declared war against the United States.

In August 1998 Al Qaeda bombed the US embassies in Kenya and Tanzania, killing over 200 people. The US responded by bombing Al Qaeda training camps in Afghanistan and a suspected chemical weapons facility in Sudan.

In January 2000 Al Qaeda launched an unsuccessful attack against an American navy ship, USS The Sullivans, off the coast of Yemen.

Judge Pohl’s Decision

These conflicting arguments over when the US armed conflict with Al Qaeda began were first addressed by the judge overseeing Nashiri’s trial.

Judge James Pohl

Credit: Lawfareblog.com

James Pohl was the original judge in Nashiri’s military commission. In January 2013 he ruled against a defense motion to dismiss the charges against Nashiri.

Judge Pohl said Al Qaeda had decided to fight a war against the United States by the time of the Cole bombing.

“In determining whether hostilities exist or do not exist, the enemy gets a vote,” Pohl wrote.

He also said Congress and President Obama agreed the armed conflict between the US and Al Qaeda began before 9/11 because the 2009 Military Commissions Act authorizes those courts to consider cases based on crimes committed before September 11, 2001.

Judge Pohl explained President Obama could have required the secretary of defense to order Nashiri’s charges dismissed if he disagreed with the contention Nashiri’s actions occurred in the context of hostilities.

Judge Pohl wrote Congress and the President deserve “wide deference” in their determination the US was engaged in an armed conflict prior to 9/11.

The Appeals Courts

Nashiri tried to get his charges dismissed by the appeals courts as well.

Nashiri’s lawyers sued Bruce MacDonald, the convening authority who referred the charges against Nashiri to the military commission, based on the argument he had broken the law by referring charges against Nashiri for alleged crimes that did not take place during an armed conflict.

In December 2013 the Court of Appeals for the 9^th Circuit ruled Nashiri did not have standing to bring the case due to a provision of the 2006 Military Commissions Act.

Nashiri then took his argument to another appeals court using a different legal tactic.

In April 2014 Al Nashiri submitted a habeas corpus petition to the DC Circuit Court of Appeals to have the charges against him suspended. He argued his conduct did not take place during an armed conflict, which meant he could not be tried before a military commission.

In December the DC Circuit decided it would not rule on the merits of Nashiri’s habeas case until his military commission trial is completed.

The MV Limburg

In addition to being charged with the bombing of the USS Cole, Nashiri is also charged with carrying out the attack on the MV Limburg. 

The MV Limburg

Credit: AFP

The MV Limburg was bombed in October 2002, over a year after the 9/11 attacks. The MV Limburg was a French ship used by Petronas, a Malaysian state-owned oil company. The attack killed one Bulgarian crew member, Atanos Atonasov.

The prosecution says one of the reasons Al Qaeda carried out the bombing was to discourage the United States from traveling near the Arabian Peninsula. The prosecution also argues the terrorist group wanted to disrupt the US economy by increasing the price of oil.

France was fighting alongside the US against Al Qaeda in Afghanistan as a member of NATO at the time of the attack.

In July Judge Pohl stepped down from Nashiri’s case in order to devote more time to overseeing the 9/11 trial at Guantanamo. He was previously in charge of both cases.

Air Force Colonel Vance Spath was appointed to replace Judge Pohl.

Judge Vance Spath 

Credit: Miami Herald

In August Judge Spath dismissed the charges against Nashiri regarding the attack on the MV Limburg. He said the prosecution failed to provide evidence to support its argument the attack took place as part of the armed conflict between the US and Al Qaeda.

In September the prosecution appealed the ruling to the Court of Military Commissions Review (CMCR). The prosecution argues the question of jurisdiction should not be decided until it presents evidence at Nashiri’s trial. Alternatively, if the prosecution is required to make its argument before trial, it would like another opportunity to do so.

Oral argument was scheduled to take place before the CMCR in November.

However, the hearing was put on hold.

The defense filed a Mandamus petition with the DC Circuit Court to disqualify two of the three judges on the CMCR. Oral arguments before the CMCR on the Limburg charges will not occur until the DC Circuit makes a ruling on this challenge.

Arguments before the DC Circuit will take place on February 10.

Implications

Whether Nashiri’s alleged crimes occurred as part of the US armed conflict with Al Qaeda will be debated before, during, and after Al Nashiri’s military commission trial. Whether or not he is convicted will depend on how the courts answer that very question.

A drawing of Al Nashiri 
by Guantanamo court illustrator Janet Hamlin

If the courts decide his alleged crimes did not take place during hostilities, he could be charged for the same attacks in a traditional federal court. Those courts can hear all cases, not just those concerning violations of the law of war.

Alternatively, the US government could continue to imprison Al Nashiri at Guantanamo as an enemy fighter, without having to charge him with a crime at all. 

Periodic Review Boards determine fates at Guantanamo

There are three main groups of prisoners at Guantanamo. Some prisoners have been cleared for release. Others are at one stage or another in war crimes trials at Guantanamo known as military commissions. The rest are imprisoned as enemy fighters.

The Obama Administration argues these individuals may return to the battlefield if released. This is the same legal theory that allowed the US to imprison German soldiers as prisoners of war during World War II.

Periodic Review Boards are hearings that consider whether continuing to detain these prisoners is, “necessary to protect against a significant threat to the security of the United States.” If not, the prisoner is recommended for release.

Photo Credit: Miami Herald

Each PRB consists of one senior official from each of six executive branch agencies: the Department of Defense, the Joint Chiefs of Staff, the Office of the Director of National Intelligence, the State Department, the Justice Department, and the Department of Homeland Security.

Periodic Review Boards are the successors to the military “Combatant Status Review Tribunals” and “Administrative Review Boards” of the Bush Administration. Those hearings were also tasked with deciding whether Guantanamo prisoners should be released or continue to be detained.

President Obama signed an executive order to create the Periodic Review Boards in March 2011. The order says the first hearing for each eligible prisoner should begin no later than one year after the signing of the executive order.

In July of 2013 Pentagon officials began notifying lawyers for eligible Guantanamo prisoners that the preparations for the panels were underway. The notifications took place during the middle of a large hunger strike at the prison.

On January 9, 2014 the Department of Defense announced the results of the first Periodic Review Board. Mahmud Al Mujahid was recommended for release.  

A total of 9 prisoners have completed a Periodic Review Board hearing. The Board determined that “continued law of war detention was no longer necessary” for 5 of those prisoners. One of the others, Abdel al Rahabi, was recommended for release after his second PRB hearing 6 months after his first one.

The other 3 were recommended for “continued detention,” and are not cleared for release, at least for the time being. 2/3 of the prisoners who have gone through the PRB process have been cleared for release.

The Periodic Review Board has 56 remaining prisoners to evaluate.

At its current rate, it would take the PRB 8 years and 10 months to complete its reviews of the remaining prisoners.

Sorry Obaidullah.

Two of the individuals cleared for release by the PRB have actually been released. I have profiled one of them, Muhammed Zahrani. 

Mohammed Shumrani was recommended for continued detention at his PRB. 

Another prisoner I have profiled, Abdul Haq Wasiq, was released without being cleared by a PRB. He was instead one of five prisoners traded in exchange for Bowe Bergdahl, an American soldier held captive by the Taliban. The trade was criticized by many members of Congress. I covered the trade and the controversy surrounding it on Public Occurrences.

Most of the prisoners I have profiled so far are eligible for a Periodic Review Board. If you were on the panel to determine their fate, how would you vote?

Good News!

I recently started my new job as a reporter for the Junction City Daily Union, a newspaper in Junction City, Kansas. I will cover the Junction City school board, the Geary community hospital, and the towns of Grandview Plaza and Milford. I am enjoying the job so far. There are a total of 4 reporters at the paper.

I am now actually being paid to cover news.

In December I graduated with a Bachelor’s of Science in Journalism and Mass Communication from Kansas State University. College was a period of my life of great achievement as well as great turmoil. Thankfully, I had good friends to help me through life’s many unexpected difficulties.

I am very happy to announce the Daily Union will allow me to continue National Security Stories and Public Occurrences. I will create new content when I have spare time, which will continue to be infrequently.

Today I have extra time. I worked at the car wash today, but we had few cars because of the cold and snow, which left me enough time to write a Guantanamo profile.

Enjoy.

I have now profiled 1/3 of the prisoners at Guantanamo, 44 in all. 

Uthman Abdul Rahim Mohammed Uthman

ISN: 027

Nationality: Yemeni

The following is a summary of the allegations against Uthman Abdul Rahim Mohammed Uthman found in publicly available US military documents. If US military documents about this prisoner are inaccurate or misleading then this summary will be as well. The introduction to this set of summaries explains some of the terms used below.  

Uthman Uthman told US interrogators Shaykh Muqbil al Wadi provided him money to travel to Afghanistan. Shaykh al Wadi’s followers declared their willingness to follow Osama Bin Laden. Bin Laden himself was strongly influenced by the anti-Western teachings of Shaykh al Wadi.

Uthman says he flew from Yemen to Pakistan in March 2001. He then went to Afghanistan.

Abdu Sharqawi, Walid Bin Attash, and Yasin Basardah identified Uthman as a Bin Laden bodyguard. Ahmed Ghailani said Uthman was a member of Al Qaeda.

The Yemeni Political Security Agency said Uthman was a member of Al Qaeda in Afghanistan who went by the alias Huthayfa al Adani. Walid Bin Attash identified Uthman’s codename as Huzayfah al Adani.

Ahmed Ghailani said Huthayfa al Yemeni fought on the front lines with the Taliban around 1999. He added Huthayfa trained at Al Qaeda’s al Faruq training camp in 1999. Ghailani said he saw him fight on the front lines near Tora Bora.

Abdullah Ahmed said Hudayfah the Yemeni was a bodyguard who was among Bin Laden’s security staff at Tora Bora. Ahmed was one of two people in charge of selecting Bin Laden’s security detail.

Mohammed Al Qahtani and Abd al Hilala said Uthman fought on the front lines with the Taliban. Mohammed Al Qahtani also said Uthman received advanced training at Al Qaeda’s Tarnak Farm training camp.

Uthman denies being a member of Al Qaeda and says he went to Afghanistan to teach the Koran to children. The unclassified summary of evidence for Uthman’s 2006 Administrative Review Board says he was unable to provide the name of the village where he taught the Koran for nine months.

Pakistan says Uthman was captured by Pakistani forces on December 15, 2001 while attempting to enter Pakistan from Afghanistan. He was captured with 31 other men.  The US government believes the group consisted primarily of Bin Laden bodyguards and other Al Qaeda members in charge of his protection. The group is referred to as the “Dirty 30” in US intelligence documents because US interrogators believe their claims of innocence to be untrue.

Ali Al Bahlul, Mohammed Al Qahtani, and Abdul Shalabi were also part of the “Dirty 30.”

Uthman says he turned himself in to Pakistani authorities so he could be taken to the Yemeni embassy. He says they turned him over to the US instead and claimed he was a member of Al Qaeda.

The group was held in a Pakistani prison in Peshawar for 15 days.

Mohammad al Zaylai, who was captured with Uthman, says the Pakistani warden of the prison where the group was held told them to tell US interrogators they were in Afghanistan to teach the Koran and study religion.  

On December 26, 2001 Uthman was transferred to US custody at the Kandahar Detention Facility.

He was transferred to Guantanamo on January 16, 2002.

Uthman was recommended for continued detention by Obama’s inter-agency Guantanamo task force in January 2010.

In April 2013 he was deemed eligible to have his ongoing imprisonment evaluated by a Periodic Review Board. A hearing date to reconsider his status has not yet been set. 

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. 

The Trial of Ali Al Bahlul

ISN: 039

Nationality: Yemeni

Ali Al Bahlul was born in Yemen on September 11, 1969. His family moved to Saudi Arabia when he was about 4 years old. Bahlul told US interrogators he fought against the communist government in Afghanistan for a year and a half in the early 1990s.

Bahlul was captured by Pakistani forces with a group attempting to flee from Afghanistan to Pakistan in December 2001. The US government believes many members of the group were Bin Laden body guards. He was turned over to US custody later that same month.

Bahlul was sent to Guantanamo on January 11, 2001, the day the first War on Terror prisoners arrived at the prison.

In February 2008 Bahlul was charged in a military commission with conspiracy, solicitation to murder, and material support for terrorism.

At his trial the prosecution alleged and Bahlul did not dispute the following facts.

Bahlul traveled to Afghanistan in 1999 to join Al Qaeda and underwent military style training at an Al Qaeda training camp. He joined Al Qaeda by pledging loyalty to Osama Bin Laden.

Bahlul helped create a recruitment video for Al Qaeda using footage of the destruction of the USS Cole. FBI interrogator Ali Soufan testified Bahlul proudly admitted producing the video during one of his interrogations. Bahlul acted as both personal secretary and media secretary to Osama Bin Laden. He operated data processing and media communications equipment for Bin Laden and Al Qaeda.

He arranged for one of the 9/11 hijackers to join Al Qaeda. He prepared the video wills of two of the 9/11 hijackers prior to the attacks. After the operation took place, he researched its economic effect for Bin Laden.

Both FBI agent Ali Soufan and Navy interrogator Robert McFadden testified Bahlul had told them American civilians were legitimate targets because they, “are paying taxes and supporting the war against Al Qaeda.”

Bahlul refused to put on a defense at his trial. His lawyer, David Frakt, respected Bahlul’s wishes and did not make any legal arguments, cross-examine any witnesses or offer a closing statement.

Bahlul’s lawyer David Frakt said Bahlul boycotted the trial because, “he never viewed the court as legitimate; he said he answered only to Allah.”

I discussed Al Bahlul’s trial with his attorney David Frakt on Public Occurrences. (That discussion begins at 2 minutes 51 seconds into the video.)

Bahlul was convicted of all three charges.

In the sentencing phase of the trial Bahlul said he volunteered to participate in the 9/11 attacks. He also claimed the US was responsible for the deaths on innocent civilians over the past 50 years and as a result, “we give you the same cup you have given us.”

Bahlul was sentenced to life in prison.

And then the appeals began.