Osama bin Laden’s former public relations manager shouldn’t have been tried by a military commission for conduct that wasn’t considered a war crime before 2006, the full U.S. Court of Appeals in Washington said, upholding an earlier ruling of a three-judge panel.
The court threw out Ali Hamza Ahmad Suliman al Bahlul’s 2008 convictions on charges of solicitation for terrorism and providing material support to terrorists before the attacks of Sept. 11, 2001, ruling that the Military Commissions Act of 2006 didn’t authorize retroactive prosecution of behavior that previously wasn’t classified as a war crime. Al Bahlul’s conviction for conspiracy was upheld upheld 6-1.
The ruling is the latest setback for U.S. officials seeking to try terror suspects at the American Naval base at Guantanamo Bay, Cuba. In June, a military judge held a hearing on allegations by defense attorneys for five Guantanamo prisoners accused in Sept. 11 attacks that the Federal Bureau of Investigation sought information on confidential communications with their clients. Before that, hearings of the 9/11 defendants have been plagued by innumerable delays, and no trial is in sight.
Last year, a panel of the appeals court dismissed the 2008 military commission conviction of bin Laden’s driver, Salim Hamdan, for supporting terrorism. Al Bahlul’s convictions were also thrown out after the Justice Department conceded the charges couldn’t stand in the wake of the Hamdan decision.
In April 2013 the government asked for a full-court review of the dismissals and argued its case in September.
Al Bahlul and Hamdan were captured a month apart in 2001 and sent to Guantanamo. Al Bahlul served as bin Laden’s personal secretary for public relations, which included administering oaths of allegiance and producing propaganda seeking to recruit members for al-Qaeda.
The court today reached the same conclusion as the previous appeals panel did regarding Hamdan’s support charge. While the court upheld al Bahlul’s conviction for conspiracy, saying the statute governing that crime existed in federal law before 2006, the judges differed on how to dispense with the case. The majority agreed to send the case back to the original panel for a ruling on residual issues.
“Bahlul’s appeal has been before this court nearly three years, and the court’s decision ensures it will remain here at least another term,” Circuit Court Judge Janice Rogers Brown said in an opinion that dissented in part.
The case should be remanded to the Court of Military Commissions Review to address the consequences of the appeals decision on al Bahlul’s life sentence, Brown wrote.
The ruling leaves uncertain the future of military commissions, the Center for Constitutional Rights, a legal non-profit said today in a statement.
“Today’s ruling is a reminder that a military commission prosecution or conviction can unravel at any time,” the group said.
The center is pushing for a similar ruling in the case of Australian David Hicks, the first designated enemy combatant to be convicted by a U.S. military commission. Hicks, who was captured in Afghanistan in 2001, spent more than five years in Guantanamo Bay for training at al-Qaeda camps. He pleaded guilty before a military commission in March 2007 under a plea agreement and was released from prison in December 2007 after serving his nine-month sentence in Australia.
Hicks’s appeal to overturn his conviction for providing material support for terrorism has been stayed pending today’s decision, the Center for Constitutional Rights said in its statement.
The case is al Bahlul v. U.S., 11-01324, U.S. Court of Appeals, District of Columbia (Washington).