WASHINGTON (CN) — Deeply fracturing the judges of its en banc court, the D.C. Circuit upheld the conspiracy conviction of Osama bin Laden's assistant by the military commission at Guantanamo Bay.
Ali Hamza Ahmad Suliman al-Bahlul produced recruiting videos for al-Qaida and taped the wills of some of those who hijacked planes on Sept. 11, 2001.
Six years after his capture, the war court at Guantanamo convicted al-Bahlul in 2008 of conspiracy and giving material support for terrorism.
The U.S. Supreme Court put those convictions in question, however, with its finding in Hamdan v. Rumsfeld that military commissions violated the Geneva conventions.
After considering the Military Commission Act of 2006, which listed the offenses that could be tried at Guantanamo, the banc D.C. Circuit in 2014 vacated al-Bahlul's material-support conviction and remanded the issue of his conspiracy conviction to the original panel.
The court held a second en banc rehearing late last year after the 2-1 panel vacated al-Bahlul's last remaining conviction after finding that conspiracy is not a war crime.
Since conspiracy is neither an offense of international law nor a war crime, al-Bahlul's attorneys argued that Congress exceeded its constitutional authority by authorizing the Guantanamo military commission — rather than a jury in an Article III federal court — to try him.
Weighing the separation-of-powers issues that the case presents, the court upheld al-Bahlul's conviction 6-3 on Thursday.
The plurality splintered as to how they reached their finding, however, resulting in four concurring opinions to the unsigned decision, plus one dissent. Together the opinions clock in at 163 pages.
U.S. Circuit Judges Karen Henderson, Brett Kavanaugh, Janice Rogers Brown and Thomas Griffith all found that Congress and the president are authorized to let military commissions try enemy combatants for conspiracy outside international laws-of-war under the Define and Punish Clause of Article I of the Constitution, along with historical precedent dating back to the Civil War.
"Indeed, perhaps the most telling factor when considering this constitutional question is the deeply rooted history of U.S. military commission trials of the offense of conspiracy, which is not and has never been an offense under the international law of war," Kavanaugh's opinion states, joined by Brown and Griffith.
The opinion says later: "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."
U.S. Circuit Judges Patricia Millett and Robert Wilkins meanwhile declined to address that issue definitively in their own opinions.
There was no division among the three judges behind Thursday's 67-page joint dissent.
"Too much is at stake to affirm," U.S. Circuit Judges Judith Ann Wilson Rogers, David Tatel and Nina Pillard wrote.
The dissenters warned that "history and precedent have established a narrow, atextual exception to Article III under which the military may try enemy belligerents for offenses against the international 'laws of war,' but inchoate conspiracy is not such an offense."
"The challenges of the war on terror do not necessitate truncating the judicial power to make room for a new constitutional order," the judges added.