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In a ruling that significantly narrows Congress’s power to use military courts to try war crimes cases, a result likely to be tested in the Supreme Court, the U.S. Court of Appeals for the District of Columbia Circuit on Friday threw out the last remaining conviction of a propagandist for the Al Qaeda global terrorism network. The decision was a major stroke of judicial independence and a strong reaffirmation of the constitutional role of civilian courts.
By a vote of two to one, the three-judge panel nullified the conviction of a Yemeni national, Ali Hamza Suliman al Bahlul, for conspiracy to commit war crimes, because that charge is not recognized in international law. If conduct only violates domestic criminal law, and not law recognized internationally, it can only be prosecuted in a civilian court, according to the decision.
The federal government has vigorously defended its case against Bahlul and its broader meaning, and thus seems likely to contest the new decision, either immediately or eventually, in the Supreme Court. The ruling, if allowed to stand after further appeals, would go far to restrict the continued functioning of the long-troubled system of military war crimes tribunals at Guantanamo Bay, Cuba.
So far, in nearly fourteen years of operations, the Guantanamo tribunals have led to the convictions of only eight individuals, out of more than 200 individuals charged there, and all but three of those eight guilty verdicts have been thrown out by reviewing courts.
It is not immediately clear how much legal damage the new decision will do to the highest-profile case that has been unfolding slowly at Guantanamo, against five individuals for the alleged roles in planning and carrying out the terrorist attacks on the United States on September 11, 2001.
But, on a broader level, the ruling stands for the basic constitutional proposition that Congress may not authorize a military court to try any criminal offense unless, by international consensus, it is illegal under “the law of war.” What is most significant about that limitation is that it would be the civilian courts, rather than Congress or the executive branch, that would decide what is recognized, or not, under international law.
The main opinion in the case, written by Circuit Judge Judith W. Rogers and joined by Circuit Judge David S. Tatel, stressed that the panel was doing nothing to restrict Congress’s authority to create new crimes to deal with international terrorism. The ruling, it stressed, was all about what the Constitution’s Article III, defining the judiciary, allows Congress to do when it decides to set up a system of punishment before military courts.
Judge Tatel, who wrote a separate concurring opinion, noted that federal prosecutors have succeeded in gaining convictions of more than 200 individuals on terrorism charges, in contrast to the eight guilty verdicts handed down by military tribunals at Guantanamo.
Circuit Judge Karen LeCraft Henderson, the most senior among the active judges on the D.C. Circuit, wrote an impassioned eighty-five-page dissenting opinion. She lamented that the majority had cut back sharply on Congress’s power to define war crimes and to arrange for their prosecution at the very time that the United States, and much of the world, is deeply worried about the growing threat of global terrorism, especially from the Islamic State movement.
She also argued that the ruling would benefit al Bahlul, whom she said was among the least deserving of those prosecuted because of his role as a propagandist helping to promote global terrorism, and taking personal pleasure in the harms done by terrorist acts.
The majority opinion by Judge Rogers sought to counter many of Judge Henderson’s dissenting points, especially viewing the role in U.S. history of prosecution by military tribunals. The two opinions, for example, gave starkly conflicting interpretations of whether the new ruling misunderstood the nature of one of the most famous military prosecutions in U.S. history: the trial of those accused of assassinating President Abraham Lincoln.
The Guantanamo detainee at the center of the case, al Bahlul, had been convicted of conspiracy to commit war crimes, along with two other charges that were thrown out earlier: providing material support to terrorist groups, and soliciting support for terrorist acts. With Friday’s decision, the conspiracy conviction, too, failed.
The core of the majority opinion was its focus on what Article III allowed Congress to do in setting up an alternative to the civilian courts for the prosecution of crime. Citing case after case in Supreme Court history, the majority found that it has long been understood that Article III mainly kept criminal case powers in civilian courts, with rare exceptions for military tribunals or commissions.
The Obama administration had taken over the defense of al Bahlul’s conviction from the George W. Bush administration, and has shown every sign that it saw much wider implications if it should lose that particular case. Its next option would be to seek reconsideration of the case by the en banc D.C. Circuit, or to move immediately to the Supreme Court. Sooner or later, it has been understood as the case unfolded at the court of appeals level that the case was destined ultimately for the Supreme Court.