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.
Guantanamo chief prosecutor, Army Brig. Gen. Mark Martins, has long argued that the current iteration of the military commissions derives its authority from what he contends is a constitutionally authorized joint exercise of power, an assertion he echoed numerous times during recent pretrial hearings at Guantanamo.
The dissenters meanwhile emphasized that the roots of military commissions lay in their promise to deliver swift justice during battle.
Against this concept, however, pretrial proceedings in the three active military commissions cases have crawled at a snail’s pace for the last 5 1/2 years.
The dissenters called it “unwise” to put off final resolution of the military commissions’ authority to preside over conspiracy charges. Though it may be able to detain al-Bahlul, the government cannot “switch the Constitution on and off at will,” the opinion states.
Another constitutional case the Supreme Court turned away Tuesday included the free-speech appeal of Krista Muccio, a 44-year-old former school lunch server charged charged in Minnesota with sending pictures of her genitals, as well as sexually explicit messages, to a 15-year-old student.
Muccio was charged under a state law that prohibits the “grooming” of children for sexual abuse via the internet, but a federal judge presiding over the case ruled the law so broad as to limit speech protected by the First Amendment.
Though an intermediate appeals panel affirmed, the Minnesota Supreme Court reversed last year, prompting Muccio to petition the Supreme Court for certiorari.
Per its custom, the justices did not issue any comment in denying such relief Tuesday.
The Supreme Court also denied certiorari Tuesday to Donald Blankenship, the former Massey Energy CEO who was given a one-year prison sentence in connection to the deadly 2010 Upper Big Branch Mine explosion in West Virginia.
Blankenship served that sentence while his appeal was pending, winning his release in May this year.
Tacking on a $250,000 fine as well, U.S. District Judge Irene Berger gave Blankenship the maximum sentence for his conviction on a misdemeanor charge of conspiracy to violate mine safety standards.
A federal jury convicted Blankenship on Dec. 3, 2015, after a trial in which he was described as a bully and micromanager who cut corners on safety at the Upper Big Branch Mine every chance he could.
Coal dust at the mine ignited roughly 1,000 feet underground on April 5, 2010. The explosion killed 29 of the 31 miners who were at work at the site at the time.
Though a state-funded independent investigation later found Massey Energy directly responsible for the blast, the former CEO has always disputed that finding, saying he believes the explosion was caused by natural gas seeping into the mine.
Blankenship was acquitted of felony charges that could have resulted in a 30-year prison sentence.
The justices did not issue any comment on denying Blankenship certiorari Tuesday, as is their custom.