WASHINGTON (CN) - Divisive cases concerning the military commissions at Guantanamo Bay, a school cafeteria worker charged with sexting a student and a coal magnate imprisoned for a mine explosion were among dozens turned away Tuesday by the U.S. Supreme Court.
Ali Hamza Ahmad Suliman al-Bahlul was convicted at Guantanamo of producing recruiting videos for al-Qaida and taping the wills of some of those who hijacked planes on Sept. 11, 2001.
Neither of the offenses on which he was tried — conspiracy and material support for terrorism — constitute war crimes, however, and al-Bahlul argued that his conviction by military commission instead of a jury in Article III federal court was unconstitutional.
The en banc D.C. Circuit vacated al-Bahlul’s material-support offense on that basis in 2014, but it upheld the conspiracy conviction 6-3 last year.
“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 Brett Kavanaugh had said at the time, signing one of four concurring opinions.
Joined by Judges Janice Rogers Brown and Thomas Griffith, Kavanaugh also pointed to 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.”
Al-Bahlul appealed to the Supreme Court but his name appeared Tuesday on the list of dozens of cases denied writs of certiorari. Justice Neil Gorsuch did not participate in the consideration or decision of al-Bahlul’s petition, according to the order, which otherwise follows the custom of offering no comment.
In their opposition to last year’s ruling, the three dissenting judges emphasized the narrowness of the exception to Article III under which the military may try enemy belligerents for offenses against the international “laws of war.”
“Inchoate conspiracy is not such an offense,” U.S. Circuit Judges Judith Ann Wilson Rogers, David Tatel and Nina Pillard wrote.
“The challenges of the war on terror do not necessitate truncating the judicial power to make room for a new constitutional order,” they added.
After al-Bahlul joined al-Qaida in the late 1990s, the native Yemeni created an al-Qaida recruitment video celebrating the group’s October 2000 attack on the U.S. Navy destroyer the USS Cole, which killed 17 sailors and injured 39.
Al-Bahlul later became a personal assistant to Osama bin Laden and helped prepare for the 9/11 attacks.