WASHINGTON – A federal appeals court on Thursday upheld the conspiracy conviction of a Guantanamo Bay detainee who once served as Osama bin Laden's personal assistant.
The U.S. Court of Appeals for the District of Columbia Circuit ruled 6-3 that a military tribunal was authorized to convict Ali Hamza al-Bahlul of conspiracy charges.
Bahlul was tried and convicted before a military commission under a system created after the Sept. 11 terrorist attacks.
A divided three-judge panel of the same court threw out the conviction last year, but that decision was set aside after the Obama administration asked the full appeals court to reconsider the case.
The previous ruling could have limited the government's ability to prosecute terror suspects outside of the civilian justice system.
But in the latest ruling, a majority of judges did not agree on the reasons for the outcome. At issue is whether the Constitution allows Congress to make conspiracy to commit war crimes an offense triable by military commissions, even though conspiracy is not recognized as an international war crime.
Four judges said the Constitution does permit Congress to make such a determination. Judge Brett Kavanaugh, writing for the four, said foreign nations, through international law or otherwise, cannot have "a de facto veto power" over Congress' determination of which war crimes a military tribunal may consider. Kavanaugh also cited historical precedent going back more than 150 years.
"The two most important military commission precedents in U.S. history — the trials of the Lincoln conspirators and the Nazi saboteurs — were trials for the offense of conspiracy," he said.
Two other judges voted to uphold the conviction, but did so for different reasons.
In dissent, three judges said "although the government might well be entitled to detain al-Bahlul as an enemy belligerent, it does not have the power to switch the Constitution on and off at will." They said Bahlul's prosecution on conspiracy charges "exceeded the scope" of what is allowed for military tribunals under the Constitution.
Steven Vladeck, a University of Texas School of Law professor specializing in national security, said the lack of a majority ruling means military commissions will continue to try similar conspiracy cases "even though uncertainty will persist over the validity of doing so."
Bahlul was arrested by local officials in Pakistan after the Sept. 11 attacks and turned over to the U.S. military, which transferred him to Guantanamo Bay. The Pentagon said he produced propaganda videos glorifying al-Qaida and assisted with preparations for the Sept. 11, 2001, terrorist strikes.
In 2008, a military commission convicted him of soliciting others to commit war crimes, providing material support to a terrorist organization and conspiracy. The appeals court threw out the first two convictions in 2014 and gave Bahlul another chance to contest the conspiracy charge.
He continues to be held at the Guantanamo Bay detention center.