By Jessica DaSilva
Dec. 1 — Attorneys faced rapid-fire questioning Dec. 1 at the U.S. Court of Appeals for the D.C. Circuit on international law, theories of criminal liability and judicial deference regarding conspiracy charges levied against the man convicted of acting as Osama bin Laden's media secretary.
The central question at issue is whether the defendant, Ali Hamza Ahmad Suliman al Bahlul, should have been tried by a civilian jury, rather than the military tribunal trial he actually received. Article III of the Constitution only allows trial by a military tribunal for “offenses against the law of nations,” according to U.S. Supreme Court case law as explained in Ex parte Quirin, 317 U.S. 1 (1942).
The government argued Congress's codified offense, “conspiracy to commit war crimes,” counted as a war crime even though it is not recognized by the international community as a violation of international law governing wars.
But that failure to recognize the offense means the defendant should have received a jury trial, asserted Michel Paradis, of the Office of the Chief Defense Counsel in Washington who argued for Bahlul.
attorney for the defendant, asserted.
Judge Robert L. Wilkins challenged Paradis whether it was proper to try a terrorist-level conspiracy offense the same way smaller domestic conspiracies are tried.
Paradis answered yes, adding that this case amounted to “ordinary, vanilla conspiracy.”
Wilkins pushed back, pointing to differences in the jury instructions for this case versus domestic conspiracy instructions.
Chief Judge Merrick B. Garland followed up on the distinction, specifically highlighting that all of Paradis's examples were on a much smaller scale and would never face a military tribunal. He asked whether the government would be forced to split cases between a jury trial and military tribunal if a defendant faced several war crime charges, including the inchoate offense of conspiracy.
Paradis said the government could split such charges if it wanted.
Judge Patricia A. Millett chimed in, asking what the founding fathers had in mind when they wrote a constitution that advised looking to the law of nations for guidance. Drafting the U.S. Constitution predated most international treaties, agreements, and case law, she said.
Paradis said they would have looked to individual nations' actions. As an example, he discussed a case from the Revolutionary War in which a British spy requested execution by gunshot. However, George Washington's legal counsel found that because most other countries executed spies by hanging, that presented the legal option.
Almost immediately, Judge David S. Tatel began peppering the government with questions regarding whether Congress could rightfully create a crime based on an offense repeatedly rejected by the international community as a war crime.
Deputy Solicitor General Ian Gershengorn responded that the omission of conspiracy as a war crime did not preclude Congress from codifying the crime.
“Even if there were proof that it was expressly rejected?” Tatel pressed.
Gershengorn answered “no,” while Judges Janice Rogers Brown and Brett M. Kavanaugh chuckled and nodded in agreement.
Tatel tried a different approach by posing a hypothetical question: What if law enforcement officers found a person with explosives, a map of the District of Columbia metro, and information from the Islamic State? Does the current amount of conflict amount to a war for the purposes of trying this person for conspiracy to commit war crimes in front of a military tribunal?
Gershengorn stated the question should not turn on the conflicts, but on whether the individual counts as an “enemy combatant.”
Judge Cornelia T.L. Pillard commented that she found it strange the government would advocate for such a broad crime, as it would open up all members of the U.S. military for international prosecution if the international community adopted conspiracy as a crime.
That concern was likely discussed when Congress created the crime, Gershengorn said, adding that is why the U.S. adheres to international law governing war.
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