En Banc Rehearing for Bin Laden Propagandist

(CN) - The D.C. Circuit agreed to reconsider its reversal of the conspiracy conviction a military tribunal handed Osama bin Ladin's former media aide.

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 this past June in vacating al-Bahlul's last remaining conviction on the basis of its finding that conspiracy is not a war crime.

The court agreed Friday to rehear the issue en banc. Oral arguments are set for Dec. 1 at 9:30 a.m.

When the court had reversed the conviction in June, Judge Karen Henderson called the ruling "alarming" and "troubling."

Al-Bahlul "could not be less deserving" of a ruling in his favor, Henderson's 85-page dissent said, citing a prior D.C. opinion in the case likening him to Hitler's propaganda minister, Joseph Goebbels.

Henderson also noted that al-Bahlul "never raised any of the arguments we today consider."

The majority meanwhile noted that the inability to prosecute al-Bahlul via military tribunal does not stop the government from prosecuting domestic offenses such as conspiracy through civil courts.

"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," Judge Judith Rogers wrote for the majority.

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