Trying to build upon a Supreme Court ruling five years ago creating one constitutional right for detainees at Guantanamo Bay, lawyers for a Yemeni national have asked the D.C. Circuit Court to establish another right — protection against war crimes prosecutions for conduct that occurred years ago, before Congress tried to make those acts a crime.  The plea came in a case that appears destined to go to the Supreme Court to test the powers of the war crimes tribunals at the U.S. military prison on the island of Cuba.

The new brief by attorneys for Ali Hamza Suliman Ahmad Al Bahlul — prosecuted as a propagandist for Al Qaeda leader Osama bin Laden — is a direct attempt to employ the Court’s 2008 ruling in Boumediene v. Bush as a foundation for expanding the constitutional rights of those facing military commissions.  The case of Bahlul v. United States (Circuit docket 11-1324) now appears to have the best chance of drawing the Justices into their first look at the current commission system at Guantanamo.  That system was created by Congress in 2006 after the Supreme Court had struck down a system ordered into being by President George W. Bush.

Al Bahlul had already won a decision overturning his November 2008 war crimes conviction, when a three-judge D.C. Circuit panel ruled in his favor in January.  But that victory was set aside when the Circuit Court agreed last month to reconsider the case en banc — that is, before the full Circuit bench.  The en banc case is now moving through a briefing cycle, and is scheduled to be heard by the Circuit Court on September 30.   The case is due to be heard by a seven-judge court.  Whether the just-confirmed Circuit Court nominee, Sri Srinivasan, will take part in the case may be doubtful.   As Deputy U.S. Solicitor General, it seems likely that he had some part in the government’s decision to seek en banc review in the Al Bahlul case.

A commission convicted Al Bahlul of three charges related to his alleged preparation of a propaganda film for Al Qaeda: conspiracy to engage in terrorist acts, soliciting others to engage in terrorism, and material support for terrorism.  He was sentenced to life in prison.  In the Circuit Court’s January ruling, those three convictions were rejected on the premise that Congress did not have the power to give a commission the authority to try Al Bahlul for conduct that had occurred as much as seven years before the 2006 Military Commissions Act was passed.

Even the Obama administration had conceded that Al Bahlul’s convictions on those three charges could not stand, because of a decision that another Circuit Court panel had issued last October, in the case of Hamdan v. United States.  Overturning the conviction in that case — providing material support to terrorism — that panel said it was ruling that way to avoid a potential constitutional problem: that is, a violation of the Ex Post Facto Clause, which generally forbids the government from turning conduct into a crime, after the crime had actually occurred.  The administration did not pursue the Hamdan case to the Supreme Court, preferring to press its arguments about military commission powers in the Al Bahlul case.  The proceedings in Al Bahlul, though, are serving as a proxy on the validity of the Circuit’s ruling in the Hamdan case, since that ruling was the sole foundation of the January ruling for Al Bahlul.

When the en banc Circuit Court set up its review of Al Bahlul’s case, one of the specific questions it told lawyers to argue was whether the Ex Post Facto Clause is a right that extends to detainees at Guantanamo Bay.  If it does not, the Circuit Court might rule that Congress had the authority to criminalize past conduct such as Al Bahlul’s.  However, another one of Al Bahlul’s arguments is that there is no indication that Congress intended to make the crimes listed in the Act apply retroactively.  If the Court were to accept that separate argument, Al Bahlul’s convictions would have to be voided.

Al Bahlul’s lawyers, in their new brief, seized on the opportunity opened by the en banc Circuit Court to make a fervent plea to give Guantanamo detainees the full benefit of the Ex Post Facto Clause.   So far, the Supreme Court has recognized only one constitutional right for those held at Guantanamo — the right to challenge their detention in a federal habeas court.  The Justices did that in their Boumediene ruling, and Al Bahlul’s lawyers have now sought to draw close parallels between the habeas right and the right not to be prosecuted under a retroactive criminal law.

The Boumediene decision relied upon the Constitution’s ban on suspending the habeas writ.  Like the Suspension Clause, the Al Bahlul brief said, the Ex Post Facto Clause, “protects persons as well as citizens.”  It added: “Indeed, the Ex Post Facto Clause shares the same history and function that was central to the Supreme Court’s analysis of the writ’s reach in Boumediene.  As with the Suspension Clause, the Framers intended the Ex Post Facto Clause “to guard against ‘excited actions’ and ‘manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed.’ ”

The Clause, the brief went on, “is designed to address the high risk that, in response to political pressures, such as those excited in the aftermath of September 11th, the legislature may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals….The Constitution’s provisions protecting habeas corpus and banning ex post facto serve the same values of protecting against arbitrary impositions on individual liberty.”

The en banc court, besides asking lawyers to explore the scope of the Ex Post Facto Clause, also told counsel to argue whether the war crime of conspiracy was a violation of international law of war at the time of Al Bahlul’s offense.  That question is based upon the premise that the Circuit panel was right in concluding that the 2006 military commission law only sought to authorize prosecution of war crimes spelled out in international law at the time of the offense.

Al Bahlul’s lawyers argued that the crime of conspiracy is not now, and was not earlier, recognized in international law as part of the law of war.  It cited international treaties, policies of national governments, and scholarly work to support that argument.

The administration’s Justice Department is due to file its brief on the en banc issues by July 10.


Posted in Detainee Litigation, Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, New plea for detainees, SCOTUSblog (May. 27, 2013, 3:22 PM),