Oral Argument Preview: Al-Bahlul v. United States

Monday morning, an en banc panel of the D.C. Circuit will hear oral arguments in the case Ali Hamza Ahmad Suliman al Bahlul v. United States. Lawfare has covered extensively the ins and outs of this important case, in which a Guantanamo detainee appeals his 2009 conviction by military commission for providing material support to Al Qaeda, conspiracy, and solicitation, and we compiled this Wiki Page collecting the relevant primary source materials associated with the case as well. The statement of facts in Al-Bahlul's opening brief articulate concisely his role in al Qaeda:

Ali Hamza Suliman Ahmed al Bahlul (“Bahlul”) acknowledges that he is a member of al Qaeda and that his beliefs remain consistent. In his late twenties, he traveled to Afghanistan to participate in the mujahedeen. The record shows that he never had foreknowledge of and did not participate in any terrorist act. His most significant contribution was a 90-minute film that the prosecution described as a “political argument.” This film was at the center of the military commission trial that convicted him and from which he now appeals.

A three-judge panel of the D.C. Circuit was scheduled to hear the detainee's appeal back in September 2012, but the court postponed the arguments and then ordered additional briefing by the parties to address its October 2012 opinion in Hamdan v. Unites States of America (Hamdan II). In that case, the D.C. Circuit found that the 2006 MCA did not authorize retroactive prosecutions of crimes that were not punishable as war crimes under U.S. law at the time they were committed. In doing so, the D.C. Circuit reversed the Court of Military Commission Review's affirmance of Salim Hamdan's conviction for material support for terrorism. In Al-Bahlul's case, the D.C. Circuit, ordered briefing regarding whether Al-Bahlul's convictions for material support, conspiracy, and solicitation should also be reversed in light of Hamdan II. The court then vacated the convictions. This prompted the government to petition for a rehearing en banc, a petition the court granted but limited to two questions:

1. For purposes of considering whether the Military Commissions Act of 2006 may permissibly proscribe pre-2006 conduct that was not a war crime triable by military commission under 10 U.S.C. § 821 before 2006, does the Ex Post Facto Clause apply in cases involving detainees at Guantanamo?
2. Assuming arguendo that, as Hamdan II concluded, the Military Commissions Act of 2006 does not proscribe pre-2006 conduct that was not a war crime triable by military commission under 10 U.S.C. § 821 before 2006, and that 10 U.S.C. § 821 permits trial by military commission only for war crimes that were proscribed under the international law of war at the time of the offense, was conspiracy a violation of the international law of war at the time of Bahlul’s offense?

Al-Bahlul sums up his arguments in his opening brief succinctly:

This case deals with the retroactive application of a criminal law. The 2006 Act was passed five years after Bahlul was taken into custody. A military commission convicted him for offenses the act proscribed on the basis of allegations that predated its enactment by as many as seven years. The resolution of this case turns on a single question. Were the war crimes for which Bahlul was convicted – to wit, conspiracy, solicitation, and material support for terrorism – war crimes when he is alleged to have committed them? A vast and unambiguous body of jurisprudence, state practice, and scholarship on international humanitarian law says they were not. The overwhelming majority of historical sources say they were not. And the government concedes they were not. Consequently, the answer to the question at the center of this case is no. Whatever basis Bahlul’s pre-arrest conduct might give the government to detain him under its war powers, and whatever basis it might give the government to pursue a grand jury indictment, the government overstepped the law in seeking to convict him as a war criminal because none of the charges it brought against him were war crimes.

The government maintains that:

. . . Congress provided for military commission jurisdiction over all of the codified offenses – including the conspiracy, solicitation, and material support for terrorism offenses committed by Bahlul – for conduct committed prior to its enactment. That construction is confirmed by the statute’s background, purpose, and legislative history. Congress enacted the 2006 MCA in direct response to the Supreme Court’s decision in Hamdan I, in which several concurring opinions invited Congress to clarify the scope of military commission jurisdiction and the validity of conspiracy charges. Congress responded by finding that the codified offenses, including conspiracy, were traditionally triable by military commission and therefore applicable to pre-enactment conduct. The statute’s context and legislative history also establish that Congress intended the military commission system to exercise jurisdiction over conduct related to the September 11 attacks. . . . Bahlul’s convictions do not violate that Clause because the 2006 MCA did not create new offenses but merely codified wellestablished offenses that have long been tried by U.S. military commissions. The purposes of the Ex Post Facto Clause – providing fair notice and preventing arbitrary and potentially vindictive legislation – are not implicated by Bahlul’s prosecution, because his conduct was self-evidently criminal and subject to prosecution under existing criminal statutes, such as 18 U.S.C. § 2332(b) (1998). . . . The 2006 MCA’s codification of offenses triable by military commission does not impermissibly encroach on the judicial power of Article III courts. Moreover, the jury trial guarantees and other procedural safeguards of the Fifth and Sixth Amendments do not apply to offenses traditionally triable by military commission committed by unprivileged enemy belligerents in the context of hostilities against the United States. Nor did the 2006 MCA impermissibly create federal common law crimes. Nothing in the Supreme Court’s cases prevents Congress from codifying, and applying to pre-enactment conduct, offenses that were recognized under the common law traditionally applied in military commissions.

One matter that may come up during oral arguments outside of the merits concerns Al-Bahlul's willingness to move forward in his appeal. In April, the detainee sent a hand-written note to the D.C. Circuit and the Supreme Court, explaining that he wished to withdraw his case, mistakenly believing that the appeal was before the Supreme Court. Al-Bahlul's counsel submitted a letter to the court explaining the misunderstanding, and indicating that after an in-person meeting to clarify the situation, his client did indeed wish to continue appealing his case. The court then ordered that Al-Bahlul personally communicate with the court regarding his preference. Al-Bahlul's counsel then proceeded to make multiple trips down to Guantanamo to collect this communication, but Al-Bahlul refused to meet with him on those occasions (it seems that Al-Bahlul indicated in the April meeting that he would not meet with his attorney until after the D.C. Circuit decided his case). The en banc panel could raise this issue during the oral arguments. The arguments begin at 9:30 on Monday morning, and each party has been allotted 30 minutes. The en banc panel includes Judges Merrick Garland, Karen LeCraft Henderson, Judith Rogers, David Tatel, Janice Rogers Brown, Thomas Griffith, and Brett Kavanaugh.