Decision in al-Bahlul released this morning

This morning, the U.S. Court of Appeals for the D.C. Circuit released its opinion in al-Bahlul v. United States (“Al-Bahlul”) vacating al-Bahlul’s conviction on charges of providing material support for terrorism and solicitation of others to commit war crimes.  Al-Bahlul was the personal assistant to Osama bin Laden who produced propaganda videos for al-Qaeda and assisted in preparations for the 9/11 attacks.

Al-Bahlul brought ex post facto challenges to his conviction on charges of conspiracy, material support and solicitation.  The Court accepted the Government’s concession that the Ex Post Facto clause of the Constitution applies to detainees at Guantanamo, but it employed plain error standard of review after finding that al-Bahlul forfeited his ex post facto objection by not raising it at trial. 

All seven judges on the en banc Court agreed that a military commission cannot try al-Bahlul for material support or solicitation under the 2006 Military Commissions Act (“MCA”) because neither offense was a war crime triable by military commission when al-Bahlul was working with bin Laden in 2001. The Government conceded that neither material support nor solicitation is an international law-of-war offense and it relied solely on weak Civil War-era military commissions convictions as precedent to support the position that analogous offenses were already triable by military commission in the United States. These precedents were too “distinguishable and imprecise” to provide the sole basis for this argument.

However, the Court upheld al-Bahlul’s conviction for conspiracy. The Court found that, prior to the MCA, conspiracy was already criminalized under 18 U.S.C. 2332(b), and it is not plain error to try a pre-existing federal criminal offense in a military commission. Any difference between the elements of that offense and that of the offense enumerated in the MCA did not seriously affect the fairness of the judicial proceedings. The Court further found that it is not plain that conspiracy was not already triable by law-of-war military commission when the conduct occurred.

The most striking aspect of this judgment is the Court’s bold declaration that the 2006 MCA unambiguously authorizes the retroactive prosecution for crimes enumerated in the statute regardless of their pre-existing law-of-war status. In doing so, the Court overruled the decision in Hamdan v. United States on this point.

It will be interesting to see how this judgment effects future prosecutions at Guantanamo because it appears to both expand and shrink the power of military commissions -- military commissions lack the power to try present detainees for offenses that were not war crimes at the time they were charged (prior to 2006), but for those detainees charged after 2006, military commissions unambiguously have jurisdiction over all crimes enumerated in the MCA even if the relevant conduct took place long before the MCA was enacted.