Stepping out of the way of an internal government feud over prosecuting war crimes cases at Guantanamo Bay, the D.C. Circuit Court on Friday accepted the Obama administration’s plea to overturn a conviction in one of those cases.  That set the stage for the administration to seek what it calls “further review” in court to determine the kind of crimes it can prosecute.  The prospects are not good for further review in the Circuit Court, however, so a Supreme Court appeal may be next.

These developments came in the midst of a disagreement within the U.S. military over the powers of the military commissions at Guantanamo.  The chief prosecutor there moved to drop some charges in several cases, including some of those leveled against the five charged with planning the 9/11 terrorist attacks on the U.S.   The prosecutor had concluded that those specific charges should not be pursued in the wake of a D.C. Circuit ruling last October that had put at least one form of war crimes complaint out of the reach of a commission.  But then the Pentagon official who has overall supervision of the Guantanamo commissions said it was premature to drop those charges, until after the government had a chance to test the Circuit Court’s ruling.   That test is what is now developing.

In its ruling last fall (discussed in this post), the Circuit Court declared that military commissions have no authority to try one of the most common anti-terrorism charges — providing aid to a terrorist network or leader.  That overturned the conviction of a Yemeni national already known to the Supreme Court — Salim Ahmed Hamdan.  He was the central figure in a 2006 Supreme Court decision that had nullified an earlier version of the Guantanamo war crimes tribunals.  He was then convicted by a newly constituted commission.

The administration could have asked the Supreme Court to review the Circuit Court’s October decision in the Hamdan case, but it chose not to do so.  The time to appeal that decision ran out earlier this month.   Hamdan has long since been sent home to Yemen.  The administration has been focusing on another Guantanamo conviction, the 2008 guilty verdict against a former film propagandist for the now-deceased Al Qaeda leader Osama bin Laden — Ali Hamza Ahmad Suliman Al Bahlul.   He, like Hamdan, was convicted by a military commission of supporting terrorism, but Bahlul also was convicted of a charge of conspiracy to commit war crimes and a separate charge of soliciting others to commit war crimes.  Bahlul was sentenced to life in prison.

In a filing in Bahlul’s case earlier this month, Justice Department lawyers said that the Circuit Court’s Hamdan decision — while an erroneous decision, in the government’s view — undermined the verdict against Bahlul, so his conviction on all charges should be overturned.  That, the brief said, would then make it possible for the government to go for “further review” in an unspecified court of the rationale of the Hamdan decision.

In the one-page order issued by the Circuit Court on Friday, it accepted the argument made in that government brief, and vacated Bahlul’s convictions on all three charges.   That, of course, does not mean that Bahlul will be freed from Guantanamo.  The government claims the power to keep him detained in the military prison there.  And, unless the constitutional guarantee aganst “double jeopardy” applies at Guantanamo — a still-open question — the Pentagon might try again later to prosecute him, especially if the Hamdan decision were to be overturned.

The Supreme Court, which has not issued a full-scale ruling on a case from Guantanamo since 2008, has never heard a case involving a conviction under the revised military commission system now operating at that base on the island of Cuba.   Almost from the time President George W. Bush first created war crimes commissions in the wake of the 9/11 terrorist attacks, the tribunals at Guantanamo have been almost constantly involved in controversy.  The controversy has only deepened as the prosecution of the five alleged plotters of 9/11 has approached.

After issuing its order on Friday, the Circuit Court took the usual step of postponing the effective date of that order, to give the government the opportunity to ask the full en banc Circuit Court to reconsider the overturning of the Bahlul verdicts.  But the Hamdan decision had been made by three of the Circuit Court’s more conservative judges, so the chances of getting a majority vote for en banc review seems remote, at best.   If the Administration does not seek such further review at that court, it would have ninety days from Friday to ask the Supreme Court to take the case.

That could set up a major test at the Justices’ next Term on the powers of the Guantanamo tribunals.   It would be too late for the controversy to be taken up in the current Term.

Posted in Cases in the Pipeline, Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Guantanamo and the Court: Next round, SCOTUSblog (Jan. 25, 2013, 7:24 PM),