For the second time in a week, a military defense team at Guantanamo Bay has asked the Supreme Court to cut back on the authority of the war crimes tribunals at the U.S. base in Cuba. The appeal filed on Tuesday involves one of the few foreign national detainees to be convicted by one of those military commissions — Ali Hamza Ahmad Suliman al Bahlul, a Yemeni national.
Al Bahlul is one of the high-profile detainees because prosecutors have charged that he was a propagandist for the Al Qaeda terrorist network, and for its leader, the late Osama bin Laden. His conviction led to a life prison term.
Last week, the same defense lawyers filed an appeal asking the Justices to bar the military commission trial of another Guantanamo detainee, a Saudi national, Abd Al-Rahim Al-Nashiri. He faces charges, and a possible death penalty, for an alleged role in a plot to bomb the U.S.S. Cole, a U.S. warship, when it was in port in Yemen in 2000.
While Al-Nashiri has not yet gone to trial, and Al-Bahlul has, victories for both of them in the Supreme Court would go far to scale back the authority of the frequently stalled military commission system that has existed for 11 years at Guantanamo, but still has few successful prosecutions to show for its troubled efforts.
Al-Bahlul is challenging his conviction on a charge of a conspiracy with an argument that that is not a war crime under international law, so a military commission has no authority to try such a case, supplanting a civilian court. A conspiracy to commit a crime, but with no proof that the crime actually occurred, is purely a domestic crime, his appeal contends. (In technical terms, Al-Bahlul was convicted of “an inchoate conspiracy.”)
If such a crime can be prosecuted as a war crime, his appeal goes on to argue, it cannot do so for actions that allegedly occurred before the commission system was created in 2006, without violating the Constitution’s Ex Post Facto Clause, which forbids retroactive prosecution of a new crime.
The third, and most far-reaching, challenge in Al-Bahlul’s case is that the entire military commission system involves a scheme of unconstitutional discrimination, because only foreign nationals, not U.S. citizens, can be put on trial. That violates the Constitution’s protection of legal equality, his lawyers argue.
In the separate case of the Saudi national, Al-Nashiri, his main claim is that he cannot be put on trial until he has a chance, in civilian court, to contest the authority of a military tribunal to handle a case that was based on alleged conduct that occurred before America’s “war on terrorism” had even begun.
A common theme of the two cases is that Congress should not be allowed to set up a war crimes trial system that takes cases away from the existing civilian courts, when those courts are open and functioning.
If the Justices were to agree to review one or both of the cases, that process would not unfold until the court[‘s next term, opening in October. As of now, the court has only eight members, and it would take four of them to grant review.
But there might be a complete bench of nine Justices by the time the court initially considers whether to take on the Guantanamo cases, if the Republican leadership of the Senate is able to call a final vote on nominee Neil M. Gorsuch by the currently planned date of April 7. The court’s current term will run through late June, so there could be time for the Justices at least to take their initial vote on review, or denial of review, before the summer recess.
Neither case reached the court in a form that the Justices must review, so they could deny one or both without offering an explanation.
The court’s last major decision on the legal rights of those detained as “enemy combatants” at Guantanamo Bay occurred nine years ago, in the famous case of Boumediene v. Bush. Although that decision gave detainees a right to challenge their imprisonment in civilian court, the reality is that the existence of that right has done little to limit the powers of the military commission system that Congress created two years before that decision.
That situation came about because the U.S. Court of Appeals for the District of Columbia Circuit, in a series of decisions left undisturbed by the Supreme Court, turned the right to challenge either detention or a war crimes conviction into a very limited right, at most.
Both of the new appeals that have now reached the court involve strong appeals for the Justices to reestablish the primary role under the Constitution of the civilian courts to handle the prosecution of crimes. Although civilian courts have actually convicted far more individuals of war-on-terrorism crimes in the past 16 years than the Guantanamo tribunals have even considered, the civilian courts so far have not been prepared to reclaim their authority, at least as it applies to the few cases pursued by the military at Guantanamo.
In the opening page of Al-Bahlul’s petition, his lawyers lay out how difficult it has been for the war crimes system to work, whether in cases before tribunals or in cases in the civilian courts weighing challenges to the military courts.
Al-Bahlul was first charged with conspiracy as an enemy combatant in 2008, his appeal noted, yet the question of the military commission’s authority to try him “remains as unresolved as it was” when he was first charged in 2004.
In just the phase of his case involving court reviews following his conviction, the filing said, “there have been six rounds of merits briefing, five oral arguments, three rehearings en banc, and 14 published opinions. Yet this case comes to this court with no controlling decision from the D.C. Circuit on a question of exceptional importance: Is it constitutional to try wholly domestic federal crimes, such as conspiracy, n these special, non-judicial trial chambers?”
Historically, the appeal paper noted, military commissions were opened in battlefield zones by a military commander to try “universally recognized war crimes during or soon after the cessation of hostilities.” By contrast, it said, the modern system at Guantanamo was “designed to be a permanent alternative to the federal court system,” with significantly curtailed legal rights for those put on trial.
“Never,” the filing sums up, “have military commissions posed such a clear danger to the structural integrity of the judicial branch.”
The Trump Administration is expected to vigorously resist review of the two cases by the court. President Trump has abandoned the idea, long but unsuccessfully sought by President Obama, to close Guantanamo entirely, and to shift most terrorism cases to the civilian courts.