New, expanded look at war crimes courts
on Sep 25, 2015 at 4:51 pm
A Guantanamo Bay war crimes case that has seemed destined for the Supreme Court throughout the seven years since a terrorism propagandist was convicted will be expanded as the U.S. Court of Appeals for the District of Columbia Circuit examines the prosecution all over again. By a majority vote among ten judges who took part, the court of appeals granted the Obama administration’s request for en banc review of the case against Yemeni national Ali Hamza Ahmad Suliman al Bahlul. That action is likely only to delay the case reaching the Supreme Court.
Al Bahlul’s case centers on whether the military commissions set up at Guantanamo Bay have the power to try foreign nationals on a charge of criminal conspiracy, without a completed terrorist crime. Because that kind of conspiracy charge has been a favorite of Guantanamo prosecutors, the ultimate outcome of the al Bahlul prosecution may have an impact on other cases at the U.S. naval and military base in Cuba.
In granting review by the full D.C. Circuit (with one judge disqualifying himself), the court wiped out a ruling last June by a divided three-judge panel, which had thrown out the conspiracy conviction at issue — the last remaining basis for a guilty verdict against the Yemeni national who served as a recruiting propagandist for terrorist leader Osama bin Laden.
But of further significance, in the Friday order, was that the D.C. Circuit added two new issues that will make the coming decision more significant in sorting out Congress’s power to create new war crimes as part of the criminal side of the government’s “war on terrorism.”
One of the newly added questions is whether Congress has the authority to create a conspiracy crime under its Article I power to “define and punish” conduct that would violate international law and, if it does, whether that would violate the Constitution’s Article III as a legislative intrusion into the power of the federal civilian courts. It has been generally understood that it is the job of the courts, rather than Congress, to decide whether a crime is recognized in the so-called “law of nations.”
In al Bahlul’s case, the majority of the three-judge D.C. Circuit panel ruled that the conspiracy charge against him was not recognized in international law. The significance of that ruling was that, if conduct only violates domestic U.S. law and not the “law of nations,” it can only be prosecuted in a civilian court, not a military tribunal, the panel majority said.
The second question added to the case for en banc review is how the court should deal with the prospect that al Bahlul, by boycotting his trial at Guantanamo Bay, may have consented — at least by implication — to being tried on the conspiracy charge. The order on Friday said the judges wanted to explore how they would assess the validity of his conspiracy conviction, if such a charge did intrude on civilian courts’ Article III power. In posing that new question, the order cited two Supreme Court decisions that deal with whether an individual involved in a lawsuit could consent to having it proceed in a federal court under Article III, if that expanded the court’s jurisdiction.
That added question suggested that some members of the court of appeals want to weigh whether al Bahlul could consent to being tried on a charge that would not otherwise be subject to prosecution before a military commission but could only be tried in an Article III civilian court.
The Obama administration, like the George W. Bush administration before it, has vigorously defended the prosecution of al Bahlul, and has argued repeatedly that overturning his conviction would impair its ability to conduct the war crimes trials at Guantanamo Bay — a system of military courts that has been plagued by continuous legal and practical problems, so that only eight convictions have been obtained since that system was created nine years ago. Several of those convicted have had their verdicts overturned on appeal, as in al Bahlul’s case.
In ordering en banc review of the Yemeni national’s case, the D.C. Circuit did not reveal how the ten judges taking part had voted, except to say that there was a majority in favor of such review. Circuit Judge Sri Srinivasan did not take part, but gave no reason. It may be that he was involved with this or other Guantanamo prosecutions when he was a Justice Department lawyer.
The Friday order called for new briefs before the en banc court, with all of those filings to be completed when the last one is due on November 12. The court then set a public hearing for the morning of December 1.
