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New limit on war crimes trials?

The Obama administration’s strong effort to protect military prosecutors’ options to level the easiest-to-prove war crimes charges against terrorism suspects appeared on Monday to be facing a significant hurdle in the D.C. Circuit Court.  The en banc court held a sixty-nine-minute hearing on the scope of military commissions’ powers, and it left the distinct impression that some potential charges will be taken out of prosecutors’ reach.

The issue arises in the case of a Yemeni national who became a film propagandist for the late Al Qaeda terrorism leader Osama bin Laden and who had some ties to two of the 9/11 plane hijackers.  Ali Hamza Ahmad Suliman al Bahlul, who has routinely admitted his sympathies for Al Qaeda’s cause but insists he committed no crimes, was convicted of three war crimes, but that verdict was once thrown out and — although technically reinstated — remains much in doubt.  (The case is Bahlul v. United States, Circuit docket 11-1324.)

The crimes were conspiracy to engage in terrorism, providing material support to terrorists, and soliciting others to engage in terrorist acts.  In a ruling last January, a three-judge panel of the court of appeals overturned Bahlul’s conviction and life prison sentence, but that was set aside when the court of appeals agreed to rehear the case before the full bench.  At Monday’s argument, government lawyer Ian H. Gershengorn made it clear that the government most wants the authority to continue making the conspiracy charge — one that he said figures in the most important cases to be tried by commissions at the military base at Guantanamo Bay in Cuba.

Although some of the seven judges on the court of appeals explored whether the Bahlul case should be disposed of for procedural reasons, Gershengorn argued that military prosecutors now are uncertain about their authority in the wake of the earlier circuit panel ruling, so “it is fish-or-cut-bait time” with a definitive ruling to settle the dispute.

Bahlul’s lawyer, military defense attorney Michel D. Paradis, told the court that no court in the American system — military or civilian — would have recognized any of those three crimes as war crimes at the time Bahlul allegedly committed them, prior to the passage of the Military Commissions Act of 2006.

Two issues are most prominent in the case, and they dominated Monday’s hearing: when Congress created those three war crimes in the 2006 law (along with others not in dispute), was it creating new crimes for punishing past conduct, and, if so, would that action violate the Constitution’s Ex Post Facto Clause, which bans the criminalization of conduct that was not a crime when it happened.

Both sides in the case agree that terrorism suspects held at Guantanamo Bay have the rights protected by the Ex Post Facto Clause, but they otherwise sharply disagree about military commissions’ authority to punish the crimes with which Bahlul was charged.

The Justice Department argues that there was no violation of that clause, since Congress was merely codifying war crimes that had long been tried by American military courts — including the courts that convicted the assassins of President Abraham Lincoln in the Civil War era and convicted a group of Nazi saboteurs during World War II.  Even though international law does not yet recognize those crimes as violations of the laws of war, attorney Gershengorn told the judges, “the American experience is crucial.”  What he called a “common law of war,” developing during American history, validated those charges long before Congress passed the new law seven years ago.

Bahlul’s legal team, by contrast, argues that the only kind of crimes that Congress may allow military prosecutors to bring against terrorism suspects are crimes that would violate the international law of war, and none of the three charges against him are so recognized.  Attorney Paradis directly disputed the claim that American history shows anything like a consistent pattern of war crimes prosecution for such charges.   The idea that U.S. war courts could try any charge that did not violate international law, Paradis contended, “has been rejected at every possible turn” in U.S. history.

Not surprisingly, some of the strongest support for Paradis’s argument came from Circuit Judge Brett M. Kavanaugh.  He had written the key opinion last year when a D.C. Circuit panel overturned another Guantanamo war crimes conviction, setting the stage for setting aside Bahlul’s conviction.  Kavanaugh had written that, to avoid a violation of the Ex Post Facto Clause, the charges at issue could not be based on retroactive creation of crimes.  On Monday, Kavanaugh several times made the point that war crimes have always been understood only as crimes that would violate international law.

The member of the court who appeared to be most skeptical of Paradis’s challenge was Circuit Judge Thomas B. Griffith, who said at one point that it was “a close call” on whether Congress in 2006 was creating new crimes that were being made retroactive, or was merely codifying what had been crimes tried by military commissions in the past.

When government attorney Gershengorn told the court that scuttling the three kinds of charge in the Bahlul case would hamper the ongoing prosecutions before commissions at Guantanamo Bay, Judge Kavanaugh commented that there were many other war crimes charges that the military prosecutors could still bring against Bahlul.

Chief Judge Merrick B. Garland also made that point, suggesting that military prosecutors might well have charged Bahlul with such crimes as “aiding and abetting” terrorism and entering a “criminal enterprise,” and there would have been no Ex Post Facto Clause problem.  Judge Garland said it “looks like” the government was using the Bahlul appeal as “a test case,” to see just how far they could push the theory that Congress could create a series of crimes that applied retroactively just because something called “the American common law of war” justified them.

Gershengorn insisted that the government was not merely pursuing a test case, because of the importance to ongoing Guantanamo prosecutions of the conspiracy charge.  But Judge Griffith retorted that the potential impact of the validity of the charges was not a factor that the court of appeals should consider in settling the issue of the validity of the three war crimes in question.

Parts of the argument focused on how the D.C. Circuit should interpret the view expressed by four Supreme Court Justices in the 2006 decision in Hamdan v. Rumsfeld that a conspiracy charge could not be brought in a military commission because no such charge existed under international law.  That view was expressed as the Court struck down President George W. Bush’s order creating an earlier form of military commission to try terrorism suspects.  It was after that ruling that Congress passed the Military Commissions Act to rescue military prosecution during the “war on terrorism.”

The government’s lawyers insisted that this conclusion was not binding, since it represented the views of less than a Court majority, while Bahlul’s attorney contended that it was at least entitled to significant respect by lower federal courts.

There is no timetable for the en banc D.C. Circuit to rule on the case.  Because much is at stake for each side in the case, it is expected that whichever side loses in that court will seek to take the case on to the Supreme Court.

Recommended Citation: Lyle Denniston, New limit on war crimes trials?, SCOTUSblog (Sep. 30, 2013, 2:22 PM),