After pondering the issue for more than a month, the D.C. Circuit Court voted on Tuesday to review anew Congress’s power to create new war crimes that apply to alleged terrorist acts that occurred even before those laws were enacted.  In ordering en banc review in the case of a Yemeni national held at Guantanamo Bay, the Circuit Court nullified a Circuit panel decision in January overturning three war crimes convictions of that individual.

The coming decision by the seven-judge Circuit Court almost certainly will be appealed to the Supreme Court, by whoever loses at the Circuit Court, and that could lead to a major new ruling on the powers of the special military commissions that have had a troubled seven-year history at the U.S. military prison on the island of Cuba.

The rehearing order came in the case of Ali Hamza Ahmad Suliman al Bahlul, who has been described by military prosecutors as a propagandist for the late terrorist leader, Osama bin Laden.  He was sentenced to life in prison after being convicted by a military tribunal of providing material support to terrorists, conspiracy to commit terrorist acts, and soliciting others to do so.

Although the en banc Circuit Court will be reviewing the government case involving Bahlul, the actual target of its review will be a decision by a different panel of the Circuit Court last October, in the case of another Yemeni national — Salim Ahmed Hamdan, often described by prosecutors as a driver for Osama bin Laden.  It was in overturning Hamdan’s conviction on a “material support” charge that the Circuit Court narrowed the powers of military commissions to try crimes that did not exist in U.S. or international law at the time of the conduct charged as criminal.  It was on the basis of that ruling that the Circuit Court wiped out Bahlul’s convictions, leading the Obama administration to ask for en banc review in early March.

In ordering further review of Congress’s power to define war crimes, the Circuit Court told lawyers not only to brief and argue the issues that had been decided by the Hamdan panel, but also two new issues.

One of those issues is whether the detainees at Guantanamo Bay are protected by the Constitution’s Ex Post Facto Clause, which generally bars prosecuting someone for a crime when the act was not a crime at the time it occurred.  When the Circuit panel cut back on military commission powers in the Hamdan case, it said it was doing so explicitly to avoid confronting that Clause’s application to those at Guantanamo.  If the Clause does not apply to those detainees, that would undercut some of the reasoning of the Hamdan panel.

The second question assumes that the Hamdan panel was right in concluding that Congress can only make war crimes out of conduct that violated the international law of war, and then asks whether the crime of conspiracy allegedly committed by Bahlul did violate international law concept at the time of his conduct.  The Hamdan panel found that it was not such a violation at the time.

The order set a brief schedule, starting on May 24 and with all the filings due by August 8.   The Court set a hearing date for Monday, September 30.

The order calling for further review was something of a surprise.  The Court, because of vacancies, now has only seven judges.  Three judges tend to vote along liberal lines, one follows a path close to the middle, and three are conservatives.  One of the conservatives, however, was the author of the Hamdan panel decision — Circuit Judge Brett M. Kavanaugh.

It took the votes of at least four of the seven judges to grant en banc review.  The order did not reveal how each judge voted, noting only that a majority had supported the move.  In all likelihood, the voting did not fall along ideological lines, but on whether the issues were sufficiently important that the full court should address them rather than leaving the issue where it stood after the three-judge panel had decided it in the Hamdan case.

With the hearing set for the end to September, it probably will be well into the following year before a final decision emerged.  Once that decision is reached, the losing side will have ninety days to seek Supreme Court review.

Posted in Detainee Litigation, Featured

Recommended Citation: Lyle Denniston, Congress’s war crimes power at issue, SCOTUSblog (Apr. 23, 2013, 1:53 PM),