Al-Qaida Propagandist's Appeal May Jostle Trials for 9/11 Plotters
WASHINGTON (CN) - An appellate court's ruling overturning the "conspiracy" and "material support for terrorism" charges for Yemeni men alleged to be Osama bin Laden's propagandist and driver has complicated the prosecutions of suspected Sept. 11, 2001, plotters, an Obama administration lawyer argued on Monday.
The war court at Guantanamo Bay found Ali Hamza Ahmad Suliman al-Bahlul guilty of "conspiracy" and "material support for terrorism" in 2008 for making a 90-minute propaganda video for Osama bin Laden as al-Qaida's media secretary.
The D.C. Circuit overturned al-Bahlul's convictions earlier this year in the wake of a series of rulings in the case of Salim Hamdan, another Yemeni man who was bin Laden's driver and bodyguard.
The Supreme Court's landmark ruling in Hamdan v. Rumsfeld found that the George W. Bush administration's military commissions violated military code and the Geneva conventions. Congress responded by passing the Military Commission Act of 2006, which listed the offenses that could be tried at Guantanamo. The D.C. Circuit vacated Hamdan's "material support" conviction late last year in a decision holding that the statute could not be applied retroactively.
That decision was later cited in overturning the counts against al-Bahlul, whose case the appellate court agreed to rehear en banc.
Ian Gershengorn, the principle deputy solicitor general, told a seven-judge panel that that shelving conspiracy as a triable charge could compromise the military commissions of the suspected Sept. 11 plotters. Defense attorneys for the alleged co-conspirators cited the D.C. Circuit in motions to dismiss, he said.
U.S. Circuit Judge Brett Kavanaugh, who wrote the Hamdan II ruling, countered that the alleged Sept. 11 conspirators are charged with a lot more than "conspiracy." Their 123-page indictment charges "attacking civilians," "attacking civilian property," "murder in violation of the laws of war," "terrorism" and other crimes.
Meanwhile, Kavanaugh pointed out that the government still has the ability to indefinitely detain al-Bahlul at Guantanamo Bay, where he still remains.
"As a practical matter, it's not a release order," the judge said.
Al-Bahlul's attorney Michel Paradis framed the case as forcing the government to "recognize its own rules."
Paradis paraphrased his client as having told the Guantanamo Bay war court, "I am not guilty. These are not crimes," at his arraignment.
Before 2006, that statement was true, the lawyer said.
Gershengorn said that the remark represented Al-Bahlul's bluster about al-Qaida rather than a sophisticated legal argument. He insisted that the United States has used conspiracy for military commission, from the time of President Abraham Lincoln's assassins to Nazi saboteur Richard Quirin.
Congress endorsed this view of legal precedent by writing that the Military Commissions Act "does not establish new crime" in the text of the statute, the prosecutor said.
Paredis called the government's view of the history "wrong." He said the Civil War-era cases tribunals were accepted only in cases of martial law. From the Nuremberg trials to Iraq tribunals from 2003, U.S. military judges "consistently rejected" conspiracy and other "inchoate" offenses as war crimes, the defense attorney added.
Before the cases of the alleged Sept. 11 and U.S.S. Cole plotters began, Al-Bahlul was seen as one of the highest profile cases at Guantanamo Bay. He is believed to have helped initiate two al-Qaida recruits who eventually became Sept. 11 plotters and to have been bin Laden's personal secretary.
But Paredis said it is not enough for the government to prove Al-Bahlul is a "bad guy."
"Laws aren't moral sentiments," he said. "They are crimes."