Al-Qaida Propagandist Has Conviction Reversed

     (CN) – Osama bin Ladin’s former media aide won the reversal of his conspiracy conviction by military tribunal because conspiracy is not a war crime, the D.C. Circuit ruled.
     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. He was captured in 2002, and remains a prisoner at the Guantanamo Bay detention camp.
     With the Bush administration opting to prosecute via military commission, rather than through the traditional court system, the war court at Guantanamo convicted al-Bahlul in 2008 of conspiracy and giving material support for terrorism.
     Meantime, however, the Supreme Court had found in Hamdan v. Rumsfeld that military commissions violated the Geneva conventions, and Congress passed the Military Commission Act of 2006, which listed the offenses that could be tried at Guantanamo.
     The D.C. Circuit ultimately vacated Hamdan’s material-support conviction in 2012, refusing to apply the statute retroactively.
     Sitting en banc last year, the federal appeals court gave al-Bahlul similar relief as to his material-support conviction and remanded the issue of his conspiracy conviction to the original panel.
     That panel was divided 2-1 Friday in vacating al-Bahlul’s last remaining conviction.
     “For more than seventy years the Supreme Court has adhered to the definition of the law of war articulated in Quirin, which the government concedes does not prohibit conspiracy,” Judge Judith Rogers wrote for the majority.
     Ex parte Quirin involved the military-tribunal conviction of three Nazi soldiers for sabotage. It defines the law of war as “that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals.”
     “The government has failed to identify a sufficiently settled historical practice for this court to conclude that the inchoate conspiracy offense of which Bahlul was convicted falls within the Article III exception for law of war military commissions,” Rogers wrote.
     Al-Bahlul’s conviction thus violates the Constitution’s separation of powers, and is a usurpation of judicial power by the executive branch, the court ruled.
     Though military tribunal is not available here, the government may, of course, prosecute domestic offenses such as conspiracy through civil courts, the panel noted.
     Judge Karen Henderson called the ruling “alarming” and “troubling” in an 85-page dissent.
     “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 (emphasis in original.
     With the president’s recent authorization of force against the Islamic State of Iraq and the Levant, “their timing could not be worse,” Henderson added.
     Al-Bahlul “could not be less deserving” of a ruling in his favor, Henderson said, citing a prior D.C. opinion in the case likening him to Hitler’s propaganda minister, Joseph Goebbels.
     And as a legal matter, the judge argued that al-Bahlul “never raised any of the arguments we today consider.”
     “The en banc court deemed his Ex Post Facto challenge forfeited and reviewed it for plain error only,” Henderson wrote. “We should have taken the same approach here, rather than declaring unconstitutional a provision of the Military Commissions Act of 2006.”
     Steven Vladeck, an American University law professor, told Military Times that the ruling permits the military commissions at Guantanamo to try only “international war crimes like the 9/11 attacks, and not any offense Congress authorizes them to prosecute.”
     Civil rights groups voiced support for the decision.
     “This is just further proof that trying terrorism suspects in military commissions is a terrible idea,” Human Rights First attorney Daphne Eviatar said in a statement . “With this ruling, it’s even clearer that federal courts are the right venue for these cases. It’s time to stop trying to force these cases into a costly, unnecessary and unreliable offshore military commission system, when we have a reliable and respected federal justice system here at home.”
     Of the eight convictions handed down by Guantanamo military tribunals, four have been fully reversed, the statement says.

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