Court overturns military commission ruling on Gitmo detainee

A split panel on a top federal court on Friday tossed out a conviction of a Guantánamo Bay detainee who had assisted al Qaeda, in what could prove to be a sweeping decision limiting the government’s use of military tribunals.

In a 2-1 opinion, judges on the U.S. Court of Appeals for the D.C. Circuit invalidated the military commission’s conviction on conspiracy charges, because conspiracy is a domestic crime and not one recognized under the international law of war.  

{mosads}According to Judge Judith Rogers, writing on behalf of the majority, Ali Hamza al-Bahlul’s 2008 military tribunal conviction of conspiracy to support al Qaeda “violated the separation of powers” by allowing Congress to side-step the judicial system. 

Bahlul, a native of Yemen, allegedly served as an aide to Osama bin Laden and led the terrorist group’s publicity campaign.

Shortly after the 9/11 attacks, he was caught in Pakistan and was sent to the detention facility at Guantánamo Bay, Cuba. Instead of being put through the traditional court system outlined under Article III of the Constitution, the Bush administration sought to prosecute Bahlul and others through a military commission.

Depending on whether Friday’s decision is appealed to the Supreme Court, brought before the full slate of judges on the appeals court or left to stand, the decision could have broad implications for the use of those military tribunals.

If left undisturbed, the ruling “will categorically foreclose any military commission trial not based upon an established international war crime,” American University law professor Stephen Vladeck argued in a blog post. The plotters of the Sept. 11, 2001, attacks may be the only ones who find themselves subjected to the military tribunals, he speculated.

In a lengthy dissenting opinion, Judge Karen Henderson warned that those consequences of the decision would be “alarming” and “troubling.”

“My colleagues’ opinion means that, in future conflicts, the government cannot use military commissions to try enemy combatants for any law-of-war offense the international community has not element-by-element condoned,” she wrote.

“Their timing could not be worse,” she added, noting the Obama administration’s increasing focus on the Islamic State in Iraq and Syria (ISIS).

Two separate military commissions were set up to try Bahlul for conspiracy between 2004 and 2006, but both were dissolved because of other legal challenges.

A new commission was set up in 2008 and convicted him of conspiracy, soliciting others to commit war crimes and providing material support to a terrorist organization, for which he was sentenced to life in prison. Last summer, another appeals court panel overturned the other charges brought against Bahlul, paving the way for Friday’s ruling against the conspiracy charge.

“Military commissions retain the ability to prosecute joint criminal enterprise, aiding and abetting, or any other offenses against the law of war, however it may evolve,” Rogers wrote in Friday’s opinion. “The international law of war limits Congress’s authority.”