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Wide-ranging new challenge to war crimes courts

In the broadest challenge so far to the system of war crimes courts set up at Guantanamo Bay in Cuba, lawyers for a Yemeni national fighting his conviction on a terrorism conspiracy charge argued on Wednesday that those tribunals are an unconstitutional attempt to diminish the power of civilian courts.  In fact, the new brief argued, the civilian courts now are being forced to compete for the authority to try such crimes.

The case of Ali Hamza Suliman Ahmad Al Bahlul is now entering its seventh phase in a complex history stretching over the past decade.  After a major ruling, partly in his favor, last month by the en banc U.S. Court of Appeals for the District of Columbia Circuit, the case is now back before a three-judge panel of that Court.

This time, perhaps more than in any of its earlier phases, it looms as a potentially profound threat to the very existence of the Guantanamo tribunals.

When the en banc D.C. Circuit struck down two of Bahlul’s three convictions as outside the power of a military commission, it partly supported the third — the terrorism conspiracy count.  However, it ordered the three-judge panel that earlier had handled the case to consider Bahlul’s four constitutional arguments against that remaining conspiracy charge — claims that the en banc court did not consider.

Bahlul’s lawyers had made those arguments, but only in summary form, in a brief before the en banc court.  The new brief, eighty pages long, spells them out in full.  The Justice Department is due to file its own brief on September 17.  Bahlul’s reply brief is to be filed October 6, and the three-judge panel is scheduled to hear the case on October 22.

The most sweeping of the four broad complaints is one that, if it were to be upheld, would end altogether the Guantanamo war crimes commissions as they now exist. That would include the series of charges against five individuals for direct roles in the 9/11 terrorist attacks on the U.S.

That is an argument that the commission system discriminates on the basis of national origin, because Congress had specified — when it created the existing system in 2006 — that only foreign nationals could be tried by such military courts.  “The 2006 Act’s legislative history leaves no doubt that Congress created criminal procedures that it viewed as unacceptable if applied to U.S. citizens,” the Bahlul brief asserted.

Congress singled out foreign nationals for this system, the brief said, because of “a general feeling that Guantanamo detainees did not deserve the same panoply of rights preserved for American citizens in our legal system.”

It added: “There is no rational, let alone compelling, government interest that justifies discrimination against non-citizens in the application of the criminal law generally or the law of law, in particular.”  No prior U.S. military commission was confined only to non-citizens, the filing noted.

Because Bahlul served as a propagandist and press secretary for the late Al Qaeda leader, Osama bin Laden, his lawyers contend that he was prosecuted to punish him for those activities, thus violating his First Amendment free-speech and free-press rights.  Here is the core of their complaint on this point:

“The weeklong trial underlying this appeal was not about the terrorist attacks on September 11, 2001.  It was not about the inner workings of Al Qaida.  It was not about a terrorist mastermind.  It was not about planning or perpetration of any terrorist attacks.  Instead, in the autumn of 2008, before a nine-member military commission, the government of the United States put a film on trial.”

This was a reference to an Al Qaeda propaganda film about the terrorist attacks on the U.S. Navy destroyer, the U.S.S. Cole.  Bahlul’s role in the making and distribution of that film was listed by prosecutors as one of the “overt acts” supporting the conspiracy charge against him.

In making this a prominent part of the conspiracy charge case, the new brief said, military prosecutors put on trial Bahlul’s “thoughts, beliefs, and ideals” solely because of their propaganda value.  Government, the filing said, has never been allowed to turn mere propaganda into a crime.

Bahlul’s other two arguments against his conviction for conspiracy are more technical in nature, dealing with Congress’s power — or lack thereof — to set up a system of military courts to try crimes that are not treated as crimes under the norms of international law dealing with war.  Doing so, the brief argued, violated two separate provisions of the Constitution:  the limits on congressional power under Article I, and an intrusion on the powers of civilian courts under Article III.

In spelling out those two complaints, though, the Bahlul brief first goes over a broad discussion of history of war crimes courts, finding that none before the Guantanamo system was allowed to try a crime that did not violate international laws of war, and then goes into a sweeping indictment of the Guantanamo system as an attempt to push civilian courts to the side in handling war-on-terrorism trials.

Some of the harshest criticism of the Guantanamo courts comes as part of the Article III argument.  By placing the power to try war crimes in a system within the executive branch, and in particular under the Pentagon’s leadership, the brief argued, Congress handed over to that branch some of the essential functions of the Article III civilian courts.

“If this court looks past the ‘military commissions’ label,” the brief argued, “it will see an unprecedented system of criminal tribunals established within the Executive Branch, which purport to exercise jurisdiction over purely domestic law crimes.  Everything about this novel criminal justice system realizes the Founders’ fear of Executive trial chambers and threatens to supplant completely our system of adjudication in independent Article III tribunals and replace it with a system of ‘specialized’ legislative courts.”

In fact, the document added, officers of the Guantanamo system claim it is equal to the regular federal courts.  Moreover, it said, “if the separation of powers means anything, it is that the federal judiciary cannot be required to compete for jurisdiction over the trial of federal crimes on a ‘case-by-case’ basis.”   There is a risk in this arrangement, the brief said, of “emasculating constitutional courts.”

These arguments will be weighed by a panel made up of Circuit Judges Karen LeCraft Henderson, Judith W. Rogers, and David S. Tatel.   After the panel rules, the case conceivably could return to the en banc court and may, ultimately, go to the Supreme Court.

Recommended Citation: Lyle Denniston, Wide-ranging new challenge to war crimes courts, SCOTUSblog (Aug. 14, 2014, 5:06 PM),