Monday the U.S. Court of Appeals for the District of Columbia Circuit upheld a military court’s conviction of Ali Hamza Ahmad Suliman al Bahlul for conspiracy to commit war crimes. However, the court also vacated two other convictions against Bahlul after the Justice Department made a major concession that can impair future military prosecutions of terrorists.
The case is Bahlul v. U.S. Bahlul was a personal assistant to al Qaeda mastermind Osama bin Laden and assisted bin Laden in the preparation for the 9/11 terrorist attacks that murdered 3,000 Americans in 2001. Bahlul was later captured by the U.S. military.
Congress passed the Military Commissions Act (MCA) in 2006 after several liberal Supreme Court decisions that fundamentally altered American law pertaining to foreign enemies, restricting presidential wartime powers. Part of this MCA established military commissions that could try cases brought against foreign terrorists held at Guantanamo Bay, Cuba (Gitmo). MCA also created the U.S. Court of Military Commission Review (CMCR) to hear appeals from those commissions and allows the U.S. Court of Appeals for the D.C. Circuit to hear appeals from the CMCR. Whoever loses at the D.C. Circuit can then petition the U.S. Supreme Court to take their case, though the justices have discretion of whether to do so.
Bahlul was convicted of the conspiracy referenced above. He was also convicted of providing material support for terrorists, as well as for a third crime of soliciting others to commit war crimes. The case went to CMCR, then to a three-judge panel of the D.C. Circuit, and finally to the full D.C. Circuit to rehear the case in an en banc sitting.
In a 150-page decision split between five separate opinions, the D.C. Circuit held that Congress unambiguously authorized courts to decide that issue retroactively, to try crimes committed before 2006 when MCA was passed.
But the Obama administration took the surprising position hailed by the far left that the Ex Post Facto Clause applies to foreign combatants held at Gitmo. That clause prohibited prosecutors from punishing someone for a crime that was not criminal at the time they did it. However, it has only been applied to domestic law enforcement, to people on American soil, not to foreign military conflicts.
The D.C. Circuit chose to adopt this concession but did so by assuming Ex Post Facto applies to Gitmo without deciding it does, so this concession does not become part of the holding of the court in this case. Consequently, it is not precedent that will control future cases or constrain future presidents.
The D.C. Circuit upheld Bahlul’s conspiracy conviction, even though the crime was committed before MCA became law. The court ruled that it did not violate Ex Post Facto because a separate federal law already criminalized such conspiracies and because it was not plain that the laws of war in 2001 did not likewise regard it as an international crime.
But the court held that the other two convictions violated the Ex Post Facto Clause, since those crimes were not recognized as a violation of the laws of war that can be decided by military commissions at the time MCA became law in 2006.
The court ordered the case back to the three-judge panel of the D.C. Circuit for an additional hearing and determining Bahlul’s sentence. Bahlul’s lawyers have the option of petitioning the Supreme Court to review the case now.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.