WASHINGTON – On July 27, the U.S. military appealed a federal appeals court’s decision to toss out a conspiracy conviction against Osama bin Laden’s personal secretary and detainee at Guantanamo Bay, Cuba, saying the ruling could jeopardize key terrorism prosecutions that are currently underway.
In a 2-to-1 decision this June, the United States Court of Appeals for the District of Columbia dismissed the judgment against Ali al-Bahlul, who was convicted in a military commission proceeding of conspiracy to commit acts of terrorism. The court found that offenses like conspiracy, which are not recognized as international war crimes, must be tried in domestic courts, where evidentiary standards are higher and proceedings are public.
This goes against the Military Commissions Acts of 2006 and 2009, signed by Presidents George W. Bush and Barack Obama, respectively.
The court found that “it was beyond Congress’ power,” Chief Prosecutor Brig. Gen. Mark Martins said at a media briefing, “to make conspiracy, inchoate conspiracy, triable by a military commission.”
Martins was in Guantanamo Bay, Cuba earlier this month for another detainee’s pretrial hearings.
When the military appealed last month, it asked the full court, as opposed to a three-judge panel, to rehear the case.
The military argued in its appellate brief that the court should hear the appeal, in part, because its decision overrode the authority and judgment of two presidents and two Congresses.
The ruling dismissed relevant Supreme Court concurring opinions, including Justice Kennedy’s note in Hamdan I that Congress, not the court, is in a better position to determine the “validity of the conspiracy charge.”
The military also pointed out that those who conspired to kill President Abraham Lincoln and the World War II Nazi saboteurs, for example, were convicted in military commissions.
In this case, the accused published various recruiting materials, including a video celebrating the bombing of the USS Cole and transcriptions of the 9/11 pilots’ “martyr wills,” which are propaganda statements released by terrorists before a suicide mission.
Bahlul’s only regret — not being a key player in the 9/11 attacks — stated explicitly in the military’s appellate brief, was not disputed.
In 2008, the military commission sentenced him to life in prison. The U.S. Court of Military Commission Review affirmed the finding in 2011 before the D.C. Circuit Court of Appeals overturned it in June.
“There is a pretty strong principle that we don’t litigate stuff ahead of the judge,” Brig. Gen. Martins said, confirming that the Court’s decision would be an issue in upcoming military hearings, though he would not give any specifics.
In 2014, Martins charged Abd al Hadi al Iraqi with conspiracy to commit acts of terror. Hadi is considered a high-value detainee, and is accused of planning and ordering attacks that killed at least eight U.S. service members in Afghanistan.
Hadi’s pre-trial hearings are scheduled to resume in August but a trial date has not been set. Martins said he did not know whether or not Navy Capt. J.K. Waits, the judge presiding over Hadi’s case, would wait to apply the Bahlul finding until after the appeals process is final.
While both Bahlul and Hadi are being held in Guantanamo, President Obama is reportedly in the final stages of closing it down, as he promised to do in his campaign for president back in 2007.