The Obama administration, sending its strongest signal yet that it will eventually go to the Supreme Court to try to salvage a wider range of war crimes prosecutions, on Tuesday took the next step on the trip upward in the federal courts.  It asked the D.C. Circuit Court to hold en banc review of its claim that Congress has power to make new terrorism crimes retroactive.   The request for en banc review — probably futile, as a practical matter — gives the government more time to prepare for a major test case in the Supreme Court.

The government has already conceded that the military commission system at Guantanamo Bay cannot now pursue several specific crimes, as matters now stand, but it is bidding to change that in coming months.  The specific target is a decision last October by a three-judge panel of the D.C. Circuit, ruling that Congress did not have the power in 2006 to create the crime of giving “material support” to terrorism.   That ruling was issued in the case of a Yemeni national, Salim Ahmed Hamdan, who had been convicted of that specific offense.  (A copy of the panel’s decision in Hamdan v. United States is attached to the new en banc petition.)

Because that crime did not exist as a matter of international law at the time Hamdan allegedly committed it, the panel said, Congress could not establish that offense after the fact as a war crime.  The panel said it was overturning Hamdan’s conviction on that basis, to avoid having to rule on the constitutionality of his prosecution under the Ex Post Facto Clause.

In its new filing, the administration told the D.C. Circuit that every pending prosecution in the Guantanamo tribunal and every conviction already obtained there has included either the charge of conspiracy or material support, or both, for conduct committed prior to 2006.  That includes the pending prosecution of five foreign nationals for their alleged roles in carrying out the terrorist attacks on the U.S. in September 2001.  “The detrimental effect” of the panel’s Hamdan decision, the petition added, “is apparent.”

The government’s handling of this challenge has been somewhat puzzling.  It did not attempt to appeal the panel decision in Hamdan to the Supreme Court, and the time to do so lapsed weeks ago.  And, citing the Hamdan ruling, it told the D.C. Circuit earlier that convictions of another Yemeni national at Guantanamo — Ali Hamza Ahmad Suliman al Bahlul — could not pass muster.  Another D.C. Circuit panel on January 25 thus summarily overturned Bahlul’s convictions, as the government had suggested it was required to do, not only for material support, but also for conspiracy and for solicitation of terrorist acts.

The government could have gone directly to the Supreme Court after that latest D.C. Circuit decision, but opted instead to file its plea on Tuesday for reconsideration.  But the D.C. Circuit Court is now down to seven active judges, so it would take the votes of at least four of them — a majority — to grant en banc review.  Among the active judges, three generally vote along liberal lines, one has generally taken a moderate position but has sometimes voted against the government in Guantanamo cases, and two are conservatives — but one of those conservatives, Judge Brett M. Kavanaugh, was the author of the Hamdan ruling that the government is now trying to get undone.  It is not necessarily so that four votes for further review will be lacking, but that does seem remote.  The D.C. Circuit does not often hold en banc sessions. (The two other members of the Hamdan panel are now senior circuit judges, and thus are not eligible to vote on the en banc issue.)

If en banc review is denied, the government will then have ninety days to ask the Supreme Court to review the case.  The Supreme Court has the choice to grant or deny review.  The content of the argument put forth in the new petition made it more than clear that the government feels very strongly that it must try to revive the additional powers for the military commission system.  There has been an ongoing, behind-the-scenes debate within the government about how to proceed on these matters, but officials committed to a hard line have been prevailing.

The chief military prosecutor at Guantanamo had decided that, after the Hamdan ruling, the commission system could not go forward with trials on the charges at issue.  But the prosecutor was then overruled by a higher Pentagon official.  There also has been an active debate among civilian officials within the Justice Department over the issue, but Attorney General Eric Holder obviously has the final power of decision, and he would have had to sign off on the new en banc request, even though the actual papers were signed by lower-ranking Department officers and lawyers.

The petition argued that, when Congress created a new version of the military commissions in 2006, it “explicitly authorized military commissions to prosecute violations of the codified offenses even if the conduct was committed before the statute’s enactment.”  It insisted that the convictions of Bahlul, while included in the 2006 law, also “have been triable by U.S. military commissions since the Civil War.”

The Hamdan ruling, the document went on, “adversely affects the military commission system that Congress established to try and punish al Qaeda terrorists and other alien enemy belligerents who committed offenses in the context of hostilities against the United States before 2006.  The decision effectively nullifies Congress’s clear grant of authority to the President to bring conspiracy, solicitation, and material support charges against the nation’s enemies for pre-2006 conduct, including the attacks of September 11, 2001….This case accordingly raises a question of exceptional importance that warrants en banc review.”

The legal reality is that the Bahlul case probably is a better one for the government to try to take to the Supreme Court than the Hamdan case itself would have been.  Hamdan has completed his sentence, and is no longer in U.S. custody but has been sent abroad.  That would have made a test case involving Hamdan one without practical significance, unless it should occur that at some point in the future he would have committed new acts of terrorism and once again been captured by U.S. forces and prosecuted again by a military commission.

As a coincidence, it was an earlier military commission case involving Hamdan that led the Supreme Court in 2006 to strike down the commission system that President George W. Bush had set up under a White House order after the terrorist attacks on 9/11.  Congress then replaced it with a new system in 2006, and Hamdan and Bahlul were among those convicted in that new tribunal.

Bahlul is described in the government’s filing as a former public relations aide to the late al Qaeda leader, Osama bin Laden, and had allegedly proclaimed himself to be al Qaeda’s “media man.”   After his conviction on the three charges that have now been dismissed, he was sentenced to life in prison.  He is still being held at Guantanamo as an “enemy combatant,” and there is no chance of his early release.


Posted in Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, New plea on war crimes scope, SCOTUSblog (Mar. 6, 2013, 12:03 AM),