Amicus Briefs in Al-Bahlul v. U.S.: Former Gov't Officials, Military Lawyers & Scholars, And the Washington Legal Foundation

Raffaela Wakeman
Thursday, July 25, 2013, 7:00 PM
Two amicus briefs were delivered today in the en banc phase of GTMO detainee Ali Hamza Ahmad Suleiman Al-Bahlul's appeal to the D.C. Circuit. The accused, as readers well know, was convicted by a military commission for, among other things, standalone conspiracy.
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Two amicus briefs were delivered today in the en banc phase of GTMO detainee Ali Hamza Ahmad Suleiman Al-Bahlul's appeal to the D.C. Circuit. The accused, as readers well know, was convicted by a military commission for, among other things, standalone conspiracy. The first brief, from former government officials, scholars and military lawyers (disclosure: Ben and Ken are amici on this brief), is available here, and advances these four principal arguments in support of the government:
  1. Conspiracy as a mode of liability for a completed war crime is recognized in international law and supported by the record and findings in the instant case;
  2. The defendant's conviction complies with the Ex Post Facto Clause;
  3. The error in the initial conspiracy charge was harmless because Al-Bahlul had fair notice of the charges against him and an adequate opportunity to prepare a defense; and
  4. The record and findings demonstrate that the instructions' failure to require a finding of a completed war crime was harmless error.
The second brief comes from the Washington Legal Foundation and a number of retired military officers, including Major General John Altenberg. Here are the brief's main points:
  1. The doctrine of constitutional avoidance is inapplicable because the MCA cannot plausibly be interpreted as applying only retrospectively.
  2. In seeking protection under the Ex Post Facto Clause, Bahlul faces a strong presumption that nonresident aliens without constitutional connection to the U.S. may not invoke constitutional rights.
  3. The Ex Post Facto Clause is intended to serve purposes that are of limited relevance to the prosecution of nonresident aliens.
  4. At most, Guantanamo detainees are entitled to invoke constitutional provisions that reinforce fundamental human values, such as protection against torture and summary execution.
There's a host of resources on this case on our Wiki Page. On the blog most recently, we noted both Al-Bahlul counsel Michel Paradis's response to a D.C. Circuit query regarding Al-Bahlul's interest---or not---in continuing with his appeal, as well as the government's en banc brief.
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Raffaela Wakeman

Raffaela Wakeman

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Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT. Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.

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