Last month the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) released a much-awaited decision on the fate of Guantanamo detainee ali-Hamza al Bahlul’s conviction for conspiracy to commit war crimes. A six-judge majority ruled that Bahlul’s military commission conviction should be upheld.
Bahlul is a Yemeni citizen held at Guantanamo since 2002 and sentenced to life imprisonment for his links to Osama bin Laden and his role as an al Qaeda propagandist. While his convictions for material support for terrorism and solicitation of others to commit war crimes were overturned in 2014, his conviction for conspiracy remained.
The charge of conspiracy is controversial because it’s not a war crime under international law, and military commissions have jurisdiction to prosecute only war crimes. In last December’s oral argument, lawyers for the government referred to instances when the U.S. government had previously used military commissions to try suspects for conspiracy, as well as the Military Commissions Acts of 2006 and 2009, which cite conspiracy as a triable offense.
After hearing the case on appeal for the fourth time, the D.C. Circuit decided that—contrary to last year’s 3-judge panel decision—Bahlul’s conspiracy conviction should be affirmed. Of the six judges in the majority, four (Brown, Griffith, Henderson, and Kavanaugh) concluded that the Constitution does not impose international law as a limit on Congress’s authority to make offenses triable by military commission.
The two others (Millett and Wilkins) approached the issue differently: Millett declined to resolve the constitutional questions on plain error review grounds, whereas Wilkins concluded that the particular features of Bahlul’s conspiracy conviction meant he actually had been convicted of an internationally recognized war crime. For Wilkins, the close connection between Bahlul’s actions and the 9/11 attacks meant that Bahlul was not convicted of inchoate conspiracy—where the conspiracy does not result in a completed crime—but rather, conspiracy that resulted in a completed crime, which Wilkins considered a war crime under international law.
The three dissenting judges (Pillard, Rogers, and Tatel) countered that, while there is a narrow exception to Article III of the Constitution (which vests judicial power in civilian courts) for using military commissions instead of civilian courts, this exception only permits the military to “try offenses against the international ‘laws of war.’” The judges stated that “more than a century of constitutional practice” supported their holding, pointing out that it was unnecessary to expand the scope of military commissions’ jurisdictions to properly try Bahlul.
They said: “The prosecution could have charged Bahlul with recognized war crimes…or it could have charged him before an Article III court with inchoate conspiracy and any number of other crimes triable there.” Indeed, former Guantanamo detainee Ahmed Ghailani was convicted of conspiracy in U.S. federal court and sentenced to life in prison in 2011.
This decision represents a dangerous carve-out of judicial authority with no clear limiting principle. As famously stated by Supreme Court Justice Hugo Black in the 1956 Reid v. Covert decision, “Every extension to military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.”
As the dissenters noted, there is no need for this dangerous expansion of military court jurisdiction. Bahlul could have been charged in the military commissions system with recognized war crimes or charged in federal court for conspiracy.
Moreover, the Guantanamo military commissions’ own record demonstrates just how unnecessary they are. Having produced only eight convictions, three of which have been overturned on appeal, they stand in stark contrast to the U.S. federal courts, where more than 550 individuals—including foreign terrorist suspects apprehended abroad—have been convicted on terrorism-related charges since 9/11.
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