Lawyers for a Yemeni national whose convictions on war crimes have been overturned by the D.C. Circuit urged that court on Wednesday not to reconsider the decision, and argued that the ruling is not interfering with the military commissions now operating at Guantanamo Bay.  The brief in response was filed at the request of the Circuit Court; the Obama administration has asked the en banc Circuit Court to rehear this dispute — as a prelude to taking the case on to the Supreme Court.

A military commission had found Ali Hamza Suliman Ahmad Al Bahlul guilty of conspiracy to commit terrorist acts, solicitation of others to do so, and providing material support to terrorists, and he was sentenced to life in prison.   He was described by military prosecutors as a public relations aide to Al Qaeda terrorist leader Osama bin Laden.

Those verdicts were overturned in January by a three-judge panel of the Circuit Court.  The panel did so at the suggestion of the Obama administration, as it conceded that the charges could not stand in the wake of a separate decision by the Circuit Court last October that military commissions could not try individuals for crimes that were committed before Congress created the present commission system in 2006.

Although the administration, in asking for en banc review of the Bahlul case (because the decision there had depended upon the Circuit Court’s October ruling in Hamdan v. United States), had argued that these rulings would disrupt virtually all prosecutions for war crimes at Guantanamo, Bahlul’s attorneys said that the government was exaggerating the impact.  The reality, it argued, is that the impact will be “trifling.”

So far, the new filing said, only seven individuals have been convicted at Guantanamo under the 2006 law: Bahlul, plus the individual involved in the Hamdan case, and five others who have pleaded guilty in exchange for release from the military prison there.  And, for cases still awaiting trials, the filing said, the military has ample war crimes charges that it can pursue that would not be affected by the Circuit Court’s decision.  Some of those available charges, it added, could lead to the death penalty.

“The government has failed to show why this court’s decisions are exceptional, let alone exceptionally in error,” the new brief contended.  If the government wants its view of the commissions’ power to prevail, the brief added, it can take the case to the Supreme Court or ask Congress to amend the 2006 law anew.

Because of the composition of the Circuit Court at present, with seven judges, it seems unlikely that a majority of four would be likely to vote to rehear the case en banc.  Thus, the government’s plea for a new review may simply serve to give it more time to prepare an appeal to the Supreme Court.  Such an appeal could be filed within ninety days after an order of the Circuit Court to refuse further review.

Under the Circuit Court order asking Bahlul’s attorneys to reply to the government rehearing request, the Circuit Court said it would not allow any further filing by the government.  That was an indication that the Circuit Court probably will act quickly on the en banc review request.

Posted in Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, New war crimes review opposed, SCOTUSblog (Mar. 20, 2013, 4:23 PM),