D.C. Circuit Upholds Al-Qaeda Publicist’s Conviction

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By Lance J. Rogers

Oct. 20 — A divided U.S. Court of Appeals for the District of Columbia Circuit Oct. 20 reinstated the conspiracy conviction of Osama bin Laden’s propoganda chief by a 6-3 vote that featured four different concurrences and a 67-page dissent ( Bahlul v. United States , 2016 BL 349187, D.C. Cir., No. 11-1324, 10/20/16 ).

The splintered decision means that military commissions may continue to try terrorism conspiracy cases, even if those conspiracies aren’t offenses under the international “law of war.”

But the broader question of whether those commissions have the constitutional authority to do so remains unresolved.

“Bahlul’s conviction stands, but only four out of nine judges voted in favor of the key issue in the case: The authority of military commissions to prosecute non-international law of war offenses,” Jennifer Daskal, an associate professor of law at American University Washington College of Law, told Bloomberg BNA.

“That means the issue is not going away,” Daskal said.

Daskal is a former counsel to the assistant attorney general for national security at the Justice Department.

Back to Square One

Steven I. Vladeck, a professor of law at the University of Texas School of Law whose teaching and research focuses on federal jurisdiction, constitutional law and national security law, says the lengthy decision with multiple concurrences puts everything back to square one.

“163 pages later, we’re back where we started,” Vladeck wrote in the online forum Just Security.

Vladeck said he isn’t surprised that the court couldn’t reach consensus on the “big constitutional question” given the way the oral argument played out.

Many of the judges seemed uneasy with the prospect of either ruling that Congress can’t authorize any domestic-law offenses to be tried by a military commission, or that Congress can authorize any crimes to be tried in a commission, as long as the offense is committed by an enemy belligerent, Vladeck said.

Vladeck filed an amicus brief on behalf of the National Institute of Military Justice supporting Bahlul.

Historical Precedent

Four of the judges on the en banc panel agreed with the government’s argument that Congress has the constitutional authority to give military commissions the power to try unlawful enemy combatants regardless of whether those offenses also qualify as international war crimes.

Judge Brett M. Kavanaugh, in a concurrence joined by Judges Janice Rogers Brown and Thomas B. Griffith, said that Congress isn’t limited by foreign law in these types of cases.

“The Constitution does not give foreign nations (acting through the international law of war or otherwise) a de facto veto over Congress’s determination of which war crimes may be tried by U.S. military commissions,” Kavanaugh wrote.

The fact that Bahlul’s crime is being labeled a “domestic conspiracy” wasn’t convincing, in Kavanaugh’s view.

“The two most important military commission precedents in U.S. history—the trials of the Lincoln conspirators and the Nazi saboteurs—were trials for the offense of conspiracy,” Kavanaugh said.

Whatever boundaries one might put on Congress’s authority to establish offenses triable by military commission, the historically rooted offense of conspiracy to commit war crimes falls well within those limits, Kavanaugh added.

“An enemy of the United States who engages in a conspiracy to commit war crimes—in Bahlul’s case, by plotting with Osama bin Laden to murder thousands of American civilians—may be tried by a U.S. military commission for conspiracy to commit war crimes,” Kavanaugh said.

Judge Karen LeCraft Henderson agreed with Kavanaugh’s logic in a separate concurrence.

No Consensus

Two judges agreed that Bahlul’s conviction should stand, but did so for different reasons.

Judge Patricia A. Millett said in her separate concurrence that the court didn’t need to reach the larger constitutional question because Bahlul never raised it in the military hearing and couldn’t meet the high burden of proving he was entitled to reversal under plain-error review.

Judge Robert L. Wilkins in his concurrence contended that the conviction should stand because Bahlul failed to prove he was convicted of an inchoate conspiracy. Bahlul was convicted of conspiring to murder Americans in the 9/11 attacks, Wilkins said.

The three dissenting judges said that the case belonged in the civil court system from the beginning.

“The challenges of the war on terror do not necessitate truncating the judicial power to make room for a new constitutional order,” Judge David S. Tatel said in a dissent joined by Judges Judith W. Rogers and Cornelia T.L. Pillard.

“The exceptional authority the government seeks here falls outside the bounds established by more than a century of constitutional practice,” Tatel added.

Military Commissions Act

Ali Hamza Ahmad Suliman al Bahlul, sometimes called the Joseph Goebbels of al-Qaeda for his production of propaganda videos, was convicted in 2008 by a Guantanamo Bay military commission for soliciting others to commit war crimes, providing material support to a terrorist organization and conspiracy.

In an en banc decision in 2014, the D.C. Circuit overturned Bahlul’s material support and solicitation convictions but rejected Bahlul’s ex post facto challenge to his conspiracy conviction under a plain-error standard of review, ruling that he forfeited those arguments by failing to raise them in the court below ( 95 CrL 514, 7/23/14).

On remand, a divided three-judge panel vacated the conspiracy conviction, ruling that the military tribunal that convicted him didn’t have jurisdiction to hear what amounts to a purely domestic offense, as opposed to an international war crime, and further that the ex post facto argument wasn’t forfeited ( 97 CrL 291, 6/17/15).

The 2006 Military Commissions Act authorizes trial by military commission for “any offense made punishable by this chapter,” including conspiracy ( 10 U.S.C. § 948d).

Congress passed the MCA in the wake of the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ( 79 CrL 471, 7/5/06), 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.

Michel Paradis, of the Office of the Chief Defense Counsel, Washington, argued for Bahlul. Ian Heath Gershengorn, of the DOJ, Washington, argued for the government

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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