Appeals court considering means for prosecuting Guantanamo detainees
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Version 0 of 1. A federal appeals court Tuesday considered the power of military tribunals and the legitimacy of the prosecution of a former media secretary to Osama bin Laden. The Justice Department urged the U.S. Court of Appeals for the D.C. Circuit to “be wary of setting outer bounds” that curtail military tribunals at Guantanamo Bay, where Ali Hamza al-Bahlul, a propagandist for al-Qaeda, was convicted in 2008. Bahlul’s lawyer countered that the government’s position would allow military tribunals to usurp the traditional role of civilian courts in handling domestic crimes such as conspiracy. “The political branches have replaced judicial power with a military trial chamber,” Bahlul’s attorney Michel Paradis said. Underscoring the significance of the case, the wood-and-marble-paneled ceremonial courtroom was filled Tuesday with law students, law clerks, Justice Department officials and military lawyers in uniform. In June, a three-judge panel threw out the remaining conspiracy charge against Bahlul, a Yemeni national, finding that he could not be tried by a military tribunal on the charge of conspiracy because it is not an international war crime. The court in September agreed to the government’s request for a rehearing by the full panel. If the court sides with Bahlul and the government loses the ability to bring conspiracy charges before military tribunals, the United States would face a harder task in prosecuting low-level detainees at Guantanamo who may have been involved with al-Qaeda but cannot be linked to specific acts of terrorism. “The efficacy of the entire Guantanamo military commission project depends upon the answer to the question presented in this case,” said Stephen Vladeck, an American University law professor who filed a brief on behalf of Bahlul. “If they can’t try non-international war crimes, then there is not a lot they can do.” The most prominent cases at Guantanamo, including those against the five people alleged to have been directly involved in planning the Sept. 11, 2001, terrorist attacks on the United States, are likely to continue — with or without a conspiracy charge. The court sat en banc for the first time since President Obama appointed four judges to the panel. Three of them — Patricia A. Millett, Cornelia T.L. Pillard and Robert L. Wilkins — are likely to play an important role in the outcome, and they dominated much of the oral argument. The fourth, Sri Srinivasan, did not participate — presumably because of his previous work in the office of the solicitor general, which handles all government appeals. Wilkins seemed interested Tuesday in whether the court could uphold the conviction in Bahlul’s case without deciding the broader question of future military commissions. “I don’t know how you can maintain that this is your run-of-the-mill conspiracy,” Wilkins told Bahlul’s attorney. Ian Gershengorn, the principal deputy solicitor general, suggested later that the court could limit its ruling to Bahlul, saying, “This particular conspiracy is one that the court should find troubling.” Bahlul has admitted to helping prepare an al-Qaeda recruitment video, to preparing martyr wills for some of the 9/11 hijackers and to doing research for bin Laden on the economic effect of the attacks on the United States. The U.S. Supreme Court has not ruled on the specific question of whether military commissions are limited to prosecutions of international war crimes. Judges Judith W. Rogers and Pillard expressed skepticism about making an exception for military tribunals to try conspiracy cases when prosecutors could have brought other charges against Bahlul. “I’m puzzled as to why we are here,” Pillard said. Gershengorn said the government needs to be able to use tribunals to prosecute conspiracy cases because that mechanism “offers an important protection” and “reflects the realities of the battlefield.” Several judges, including Thomas B. Griffith, also pressed lawyers about how deferential the appeals court should be to the lower courts — in this case, concerning the conviction by the military tribunal. If the court gives weight to the tribunal’s decision, Bahlul faces a high bar for overturning his conviction. In the appeals court’s divided panel opinion in June, Judge David S. Tatel noted that federal civilian courts already issue thousands of conspiracy convictions each year, including for terrorism. Civilian courts, however, are not an option because Congress has barred bringing any Guantanamo detainees into the United States. Julie Tate contributed to this report. |