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December 15th, 2017

On Law

Justices' decision not to review conviction of top bin Laden lieutenant leaves military tribunals' powers in place

Robert Barnes

By Robert Barnes The Washington Post

Published October 11, 2017

Justices' decision not to review conviction of top bin Laden lieutenant leaves military tribunals' powers in place
WASHINGTON - The appeal of one of Osama bin Laden's top aides ended Tuesday, as the Supreme Court declined to review whether his conviction by a military tribunal exceeded that body's authority.


Without comment, the justices turned down an appeal by Ali Hamza Ahmad Suliman al Bahlul, a propagandist for al-Qaida and former media secretary for bin Laden. He was convicted of conspiracy by a military tribunal at Guantanamo Bay in Cuba in 2008 and sentenced to life imprisonment.


Lawyers for Bahlul claimed that the Yemeni man's conviction violated a constitutional requirement that most criminal prosecutions take place in federal courts. The charge against Bahlul was a domestic one, not a violation of international law.


The U.S. Court of Appeals for the D.C. Circuit has debated the powers of the military tribunal system ever since the Supreme Court ruled in 2008 that those held at Guantanamo Bay have some rights in federal courts to challenge their detention.


Constitutional and international law experts and civil rights groups had joined Bahlul's attorneys in urging the justices to take the case, saying it raised constitutional questions only the Supreme Court could answer.


But the court has steadfastly refused requests to take a case that would amplify its ruling in Boumediene v. Bush.


Bahlul, who has been held at Guantanamo Bay since 2002, was originally convicted of conspiracy to commit war crimes, solicitation of others to commit crimes and providing material support for terrorism.

Only the conspiracy charge remained, however, and the circuit court split in upholding that conviction.


Judge Brett Kavanaugh wrote for several other judges to say that Congress may designate military commissions to try domestic offenses typically heard by civilian courts.


"The Constitution does not give foreign nations (acting through the international law of war or otherwise) a de facto veto over Congress's determination of which war crimes may be tried by U.S. military commissions," Kavanaugh wrote in an opinion joined by Judges Janice Rogers Brown and Thomas Griffith.


Other judges, endorsing more limited legal reasoning, joined to make a six-member majority to uphold the conviction.


In a 67-page dissent, three judges said there are "constitutionally prescribed boundaries" between military and civilian courts and that the prosecution could have instead charged Bahlul with recognized war crimes or charged him in federal court.


Judges David Tatel, Judith Rogers and Cornelia Pillard said in their dissent that even though Bahlul has admitted to serving as bin Laden's personal secretary and making al-Qaida recruitment videos, the "challenges of the war on terror do not necessitate truncating the judicial power to make room for a new constitutional order."


A ruling against the government would have made it more difficult to prosecute low-level detainees at Cuba's Guantanamo Bay.


The Supreme Court gave no reason for not accepting Bahlul v. United States, and new Justice Neil Gorsuch took no part.

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