The D.C. Circuit Court on Friday afternoon asked lawyers for a foreign national convicted of war crimes at Guantanamo Bay to answer the Obama administration’s plea for a new look by that court at the powers of the military commissions to try terrorist suspects.  The order does not assure that the Circuit Court will pursue that issue further, but at least it raises the prospect that it could, as a prelude to a likely Supreme Court appeal.

On Tuesday, the administration urged the Circuit Court to put the issue before the full, seven-member en banc bench, to review the validity of the convictions of Yemeni national Ali Hamza Ahmad Suliman al Bahlul.  (A post discussing that filing can be read here.) Bahlul’s convictions were nullified on January 25 by a three-judge panel of the Circuit Court, based on a ruling by another panel last October limiting military commissions’ authority to try crimes that were being enforced retroactively.

Under the Circuit Court’s rules, Bahlul’s lawyers could not have responded unless the Circuit Court asked for that.  Absent such a request, the Circuit Court would have gone ahead and denied en banc review.  Thus, Friday’s order gave the government at least some reason to think that it might succeed in getting another round at the Circuit Court.  (Bahlul’s response is due in fifteen days.)

If the full court accepts the case for review, that will nullify the three-judge panel ruling against Bahlul’s convictions.  But at the center of this controversy is a different three-judge panel’s ruling, issued last October, limiting military commission authority.  That is the decision that the administration most wants to overturn, and its Tuesday filing amounted to an all-out legal assault on that ruling.

Given the composition of the en banc court, the chances that the government will prevail there seem limited at best.  In any event, the dispute is ultimately expected to reach the Supreme Court.

At issue is whether Congress had the power in 2006, in creating the military commission system at Guantanamo, to allow prosecution for crimes that did not exist at the time the accused were alleged to have committed them.  It was that retroactive reach of the 2006 commission law that the Circuit Court panel found to be invalid last October.

The government maintains that the specific kinds of charges in dispute have existed since the Civil War and that Congress, in the 2006 law, merely codified them.  But the Circuit Court panel said that the specific crimes did not exist under international law at the time the accused individuals allegedly committed the acts, and thus Congress could not make them retroactive under its war-management powers.

The Circuit Court panel said it was denying the power to make the crimes retroactive, in order to avoid having to decide whether doing so was unconstitutional under the Ex Post Facto Clause.

The specific crimes at issue are material support for terrorism, conspiracy to commit terrorist acts, and solicitation of others to commit such acts.  Bahlul was convicted of all three of those charges, but his conviction on each was found invalid in the Circuit Court’s January decision.  Every case so far prosecuted at Guantanamo has involved one or more of those specific charges — including the highest-profile case, against five men accused of staging the terrorist attacks on September 11, 2001.

If the Circuit Court now denies en banc review, or if it conducts that review and then rules against the government, administration lawyers will have ninety days to try to take the case to the Supreme Court.


Posted in Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Circuit seeks reply on war crimes, SCOTUSblog (Mar. 8, 2013, 9:00 PM),