D.C. Circuit Snarls Law on Military Tribunals

     (CN) - While affirming the conviction of Osama bin Ladin's media aide for conspiracy to commit war crimes, the en banc D.C. Circuit declined Monday to fully endorse future trials of terrorist detainees by military commission.
     As personal assistant to bin Laden, Ali Hamza Ahmad Suliman al-Bahlul helped plan the Sept. 11, 2001, attacks, produced recruiting videos for al-Qaida and taped the wills of some of the 9/11 hijackers.
     He was captured in 2002 and remains a prisoner at the Guantanamo Bay detention camp.
     A military tribunal found al-Bahlul guilty in 2008 of providing material support for terrorism, and conspiracy to commit war crimes, and sentenced him to life imprisonment.
     Those convictions came into question, however, amid the challenge by Salim Hamdan, another Yemeni man who was bin Laden's driver and bodyguard.
     In Hamdan v. Rumsfeld, the Supreme Court found that the military commissions convened by the administration of President George W. Bush violated military code and the Geneva conventions. Congress responded by passing the Military Commission Act (MCA) of 2006, which listed the offenses that could be tried at Guantanamo.
     Refusing to apply the statute retroactively, the D.C. Circuit vacated Hamdan's material-support conviction in 2012. Al-Bahlul persuaded a three-judge panel last year to do the same in his case, but the federal appeals court decided to rehear the case en banc.
     In a massive caveat to Hamdan II, the D.C. Circuit's ruling in the case on remand from the Supreme Court, a four-judge majority said Monday that the MCA does indeed authorize trials based on pre-MCA conduct - as long as the crime was recognized as a war crime at the time of the offense.
     "There could hardly be a clearer statement of the Congress's intent to confer jurisdiction on military commissions to try the enumerated crimes regardless whether they occurred 'before, on, or after September 11, 2001,'" Judge Karen Henderson wrote for the majority. "And the provisions of the statute enumerating the crimes triable thereunder expressly 'do not preclude trial for crimes that occurred before the date of the enactment of this chapter.'"
     The MCA was enacted specifically in response to address the Supreme Court's decision in Hamdan - empowering the president with the power that the high court denied him, the judgment said.
     "Reading the MCA in this context and given the unequivocal nature of its jurisdictional grant, we conclude the 2006 MCA unambiguously authorizes Bahlul's prosecution for the charged offenses based on pre-2006 conduct," Henderson said.
     Like Hamdan, al-Bahlul cannot be convicted of materially supporting terrorism because there is "little domestic precedent to support the notion that material support or a sufficiently analogous offense has historically been triable by military commission," the 53-page lead opinion states.
     But conspiracy "has traditionally been triable by military commission since the U.S. Civil War," Henderson said, noting that President Abraham Lincoln's assassinators were convicted by military commission of conspiracy to murder.
     Judges Brett Kavanaugh and Janice Brown agreed with this distinction between the conspiracy and material support charges in separate partly concurring opinions.
     The court split on what standard of review to apply on appeal. While the four-judge majority decided to examine the convictions under the "plain error" standard, Kavanaugh, Brown and Judge Judith Rogers three judges called for de novo, or on the merits, review that does not accord deference to the lower court's decision.
     By applying a plain-error standard of review, the court declined to uphold al-Bahlul's conviction on its merits, leaving the prosecution of remaining Guantanamo detainees in legal limbo.
     "The historical practice of our wartime tribunals is sufficient to make it not 'obvious' that conspiracy was not traditionally triable by law-of-war military commission," Henderson's lead opinion states. "We therefore conclude that any Ex Post Facto Clause error in trying Bahlul on conspiracy to commit war crimes is not plain."
     For the dissenting judges, just because the error is not plain, does not mean that there was no error.
     Steve Vladeck, a law professor at American University Washington College blogged this morning that the court's decision "significantly" complicates the law surrounding the use of military tribunals to prosecute terrorists.
     Judge Brown's partial dissent expressed a similar opinion.
     "It may be many years before the government receives a definitive answer on whether it can charge the September 11 perpetrators with conspiracy, or whether Congress has the power to make such an offense triable by military commission even prospectively," she wrote.
     "I would resolve now the exceedingly important questions presented in this case," Brown continued.
     The fully dissenting Judge Rogers meanwhile said that the government had no authority to retroactively convict al-Bahlul of conspiracy.
     "The government's 'flexible' approach to the Ex Post Facto Clause, relying on the position that Bahlul's conduct may have been proscribed by laws other than those under which he was charged and convicted, 'is a standardless exercise in crime by analogy,' that the Supreme Court has condemned, and the law of war forbids," Rogers wrote.
     A concurring opinion by lead author Henderson brings Monday's full filing to 150 pages.