Military Power to Try Terrorists Re-Examined

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By Lance J. Rogers

Sept. 28 — A panel decision limiting the ability of Guantanamo Bay military commissions to try terrorism conspiracies will be re-examined en banc, the U.S. Court of Appeals for the District of Columbia Circuit announced Sept. 25.

A divided circuit panel June 12 vacated the conspiracy conviction of Osama bin Laden's media secretary, ruling that the military tribunal that convicted Ali Hamza Ahmad Suliman al Bahlul didn't have jurisdiction to hear what amounts to a purely domestic offense.

Writing for the 2-1 majority, Judge Judith W. Rogers said Congress overstepped its authority when it gave military commissions the right to try crimes that aren't offenses under the international “law of war.”

Authority to ‘Define and Punish.'

In its petition to the en banc panel, the government argued that the decision presents a question of exceptional importance because it “imposes substantial constitutional limits on the authority of Congress and the President to use military commissions to try unlawful enemy combatants for a range of offenses committed both before and after 2006, in the current conflict and in conflicts yet to come.”

The full court voted to rehear the issues raised in the government petition and further directed the parties to brief whether Congress has the authority to create a conspiracy crime under its Article I powers to “define and punish” conduct that would violate international law. If the answer is yes, the parties should then discuss whether the exercise of that power transgresses the Article III authority of federal civilian courts, the court said.

It also asked the parties to address the proper standard of appellate review.

The 2006 Military Commissions Act authorizes trial by military commission for “any offense made punishable by this chapter,” including conspiracy. Congress passed the MCA in the wake of the U.S. Supreme Court's ruling in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), which held that the military commissions established by President George W. Bush lacked the authority to try alleged alien terrorists being held at Guantanamo Bay.

Alleged Propaganda Chief

According to prosecutors, Bahlul produced propaganda and recruiting videos for al Qaeda and assisted with preparations for the attacks of Sept. 11, 2001.

After his capture in Pakistan, he was taken to Guantanamo Bay where a military commission convicted him of conspiring to commit war crimes, providing material support for terrorism and soliciting others to commit war crimes.

The full D.C. Circuit will hear oral argument Dec. 1.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: Tom P. Taylor at

The order is available at