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Appeals court ponders future of war crimes trials

Three judges of the U.S. Court of Appeals for the D.C. Circuit listened closely, but noncommittally, on Wednesday to a broad constitutional attack on the system of war crimes tribunals now operating at the U.S. military base at Guantanamo Bay, Cuba.  The hearing — running more than twice as long as the assigned half-hour — ranged over the trial of Abraham Lincoln’s assassins, a military trial in the Civil War, a sabotage trial during World War II, and an 1895 case involving a Chinese national convicted outside of the regular court system.

The point of that exploration was to help the three-judge panel decide whether Congress and the Pentagon have teamed up to create a system of war crimes prosecutions that pushed aside the regular civilian trial courts, in a way that violates the Constitution’s Article III, creating the federal judiciary.  The case heard Wednesday seems destined to go to the Supreme Court.

The D.C. Circuit panel was carrying out an assignment given it last July by the en banc court of appeals:  to explore whether to wipe out the last basis for convicting a Yemeni national and close aide to the late Osama bin Laden, the Al Qaeda terrorist network leader, for a war crime.  The en banc panel nullified the other two guilty verdicts for Ali Hamza Ahman Suliman al Bahlul.

Bahlul’s military defense team has raised three sweeping constitutional arguments against his conviction for conspiring to aid terrorism — and two of those arguments have the potential to collapse the Guantanamo military commission system in its present form.  One is that Congress lacked power under Article III to carve out crimes that could be prosecuted in the civilian courts and handed them over to military tribunals with flawed procedures, and the other is that Congress unconstitutionally set up a system that discriminates against non-citizens — the only ones subject to such military war crimes trials.

The panel also spent time Wednesday exploring the defense team’s third broad challenge, that Congress lacked the power to create the crime of war crimes conspiracy and assign prosecutions thereof to military commissions, because such a charge is not recognized in the international law of war.

At times, the one-hour, ten-minute hearing seemed to get diverted into the arcane world of international law, and how that differs from or supplements homegrown U.S. law, and into the legal profession’s capacity to parse in extremely fine ways the nuances of Supreme Court opinions.

But Michel Paradis, a Navy lawyer defending Bahlul, enlivened the hearing with soaring rhetoric as he challenged the three judges “to ensure that the Executive is not sidelining the judiciary.”  The D.C. Circuit, he said, now has “an independent duty to protect the courts’ turf, and the sanctity of the civilian trial.”

Asked by Circuit Judge David S. Tatel which of his constitutional arguments he considered the strongest, Paradis responded that one was not necessarily stronger than another, but then he more enthusiastically spelled out Bahlul’s Article III claim — creating the fascinating spectacle of a jihadist sympathizer who had proclaimed his pride in the terrorist attacks on the U.S., now defending the prerogatives of the federal courts in constitutional jousting with Congress and the military.

At some points in the hearing, it appeared that the case was actually focused only on the conspiracy count in Bahlul’s verdict.  If the panel’s decision goes off on that point alone, its impact on the Guantanamo trials may not be significant.

A Justice Department lawyer, John F. DePue, told the judges that “only a handful” of those facing war crimes charges now at Guantanamo are accused of the conspiracy offense.  Even so, DePue made his own rhetorical thrusts, telling the court that what lay behind the conspiracy count were a series of ten specific acts that were “quintessential war crimes,” such as making plans to kill innocent civilians.

DePue seemed at times to draw more skepticism for some broad arguments of his own, that Congress has sweeping authority under its war powers grant in the Constitution’s Article I to create military commissions.  He disputed Paradis’s argument that these tribunals were unprecedented in American history, and the defense lawyer’s suggestion that international law frowns on making conspiracy a stand-alone violation of the law of war.

International law, DePue said, does not recognize conspiracy as a violation of the law of war, but the international community does acknowledge that an individual nation can make that into a war crime when someone takes action which threatens that particular nation.

Judge Tatel dominated the questioning, asking almost all of the questions that were put to Paradis, and most of those asked of DePue.  Circuit Judge Judith W. Rogers asked only a few questions of DePue, but did dispute his suggestion that the conspiracy issue will affect only a “handful” of Guantanamo prosecutions.

Circuit Judge Karen LeCraft Henderson presided at the session, but asked no questions.

There is no deadline for the panel to reach its decision.  After it does so, the case seems sure, no matter how it turns out, to return to the en banc D.C. Circuit, and then go on to the Supreme Court, given the importance of the issues at stake.


Recommended Citation: Lyle Denniston, Appeals court ponders future of war crimes trials, SCOTUSblog (Oct. 22, 2014, 1:45 PM),