The en banc U.S. Court of Appeals for the D.C. Circuit heard arguments today in a case that could undo a terrorism conviction and reshape how the government prosecutes criminal charges against other detainees held at Guantanamo Bay, Cuba.
The court was asked whether military commissions could hear charges that weren't defined as war crimes under international law when the defendant was accused of committing them. Congress passed a law in 2006 spelling out the jurisdiction of the military commissions, but detainee Ali Hamza al-Bahlul-along with other detainees at Guantanamo Bay-was charged several years earlier.
Retroactive application of new criminal statutes is generally considered unconstitutional. Today's arguments came down to whether the crimes al-Bahlul was convicted of-conspiracy, solicitation and material support for terrorism-were considered war crimes under the international law of war before 2006.
Al-Bahlul's team argued conspiracy and the other charges were not defined as war crimes under international law, pointing to rulings by tribunals and courts after World War II and later in the 20th century. His attorney, Michel Paradis of the U.S. Department of Defense, said a previous D.C. Circuit panel in Hamdan II was correct in finding that the “law of war” referred to the international law of war, which had not historically recognized conspiracy and the other charges as war crimes. In Hamdan II, the court found that the Military Commissions Act of 2006 could not apply retroactively and vacated charges against Osama Bin Laden's bodyguard of providing material support for terrorism.
“There wasn’t a court in this country, let alone a military commission, that could have tried any of these crimes prior to 2006,” Paradis said.
Ian Gershengorn, the principal deputy solicitor general for the United States, insisted there was precedent for conspiracy trials before military commissions, citing Civil War-era cases and charges brought against Nazi saboteurs in the United States. Gershengorn said the court got it wrong Hamdan II, arguing the international law of war could be “supplemented” by previous practices by American military commissions.
Al-Bahlul worked in al-Queda’s media office and was a member of Osama Bin Laden’s entourage. He was arrested in Pakistan after the September 11, 2001, attacks and transferred to the custody of the United States. A military commission found him guilty of conspiracy, solicitation and material support for terrorism charges related to his work creating propaganda for al-Queda. However, citing the Hamdan II decision that the Military Commissions Act could not apply retroactively, a three-judge appellate panel vacated al-Bahlul’s conviction in January.
Today's arguments focused on the conspiracy charge. Judge Thomas Griffith asked Paradis if it was a "close call" as to whether conspiracy could be defined as a war crime. Paradis replied that it was not, saying his position was supported by precedent throughout the 20th century, from World War II tribunals to the military commission set up in Iraq in 2003. The court exhausted its questions for Paradis less than halfway through his allotted 30-minute arguing time, although he did field additional questions on rebuttal.
Judge Brett Kavanaugh, who wrote the Hamdan II opinion, pressed Gershengorn to explain why the law of war shouldn't be considered the international law of war, given U.S. Supreme Court precedent. Gershengorn said a definition restricted to international law would jeopardize 150 years of practices by military commissions.
Judge Janice Rogers Brown asked whether the government was arguing that there was a domestic common law of war versus an international law of war with imprecise boundaries. Gershengorn replied that the government had to prove conspiracy was triable by a military commission under international law, as opposed to proving that conspiracy was directly a violation of the international law of war. That was why previous examples from American history of military commissions having the authority to hear conspiracy charges were relevant, he said.
Gershengorn said there was "tremendous uncertainty" about the law governing terror cases in light of the court's recent rulings, pointing out that other detainees were already challenging their convictions under Hamdan II. He agreed with Kavanaugh, though, that vacating al-Bahlul's convictions would not be the same as a release order. If the court did vacate al-Bahlul's conviction, he could still be detained under rules of war or face other charges.
Seven judges heard the case. The newest judge confirmed to the D.C. Circuit, Judge Sri Srinivasan, did not sit on today's panel. A court representative said it is not the court's practice to explain why a judge did not sit on an en banc panel.