Appeals Court Tosses Military Tribunal Convictions Of Gitmo Prisoners

A Federal Appeals Court In Washington has ruled that the military tribunal convictions of one group of Guantanamo Bay detainees was unconstitutional.

Guantanamo Bay Camp Entrance

A panel of the Court of Appeals for the D.C. Circuit has ruled that the conviction of a detainee at the military prison at Guantanamo Bay on the ground that it was unconstitutional to try him before a military tribunal:

WASHINGTON — A federal appeals court on Friday threw out the conspiracy conviction of a detainee at Guantánamo Bay, Cuba, ruling that bringing the charge before a tribunal was unconstitutional because an international war crime was not alleged.

In a blow to the military tribunal system, a panel of the United States Court of Appeals for the District of Columbia Circuit vacated the conviction of the detainee, a Yemeni man named Ali al-Bahlul, who had been charged with conspiracy to commit acts of terrorism. The court, in a 2-to-1 ruling, said that the government could prosecute him only in a civilian court if it wanted to bring a domestic-law charge like conspiracy against him.

The question of whether foreign terrorism suspects should be prosecuted in civilian court or before a military commission has prompted a recurring political debate. Congress has banned bringing Guantánamo detainees into the United States for trial. It enacted statutes in 2006 and 2009 saying that prosecutors in military commissions could bring charges against terrorism suspects for offenses that include “providing material support for terrorism” and “conspiracy.”

Those charges are useful for prosecuting suspects who joined and aided a terrorist group but are not linked to specific attacks. The charges apply to domestic-law crimes, however, not international war crimes. If Friday’s ruling stands, the parts of the 2006 and 2009 statutes that allowed such lower-level cases to be funneled into military commissions would be voided.

“The government can always fall back on the apparatus it has used to try federal crimes for more than two centuries: the federal courts,” Judge David S. Tatel wrote in an opinion concurring with the result. “Federal courts hand down thousands of conspiracy convictions each year, on everything from gunrunning to financial fraud to, most important here, terrorism.”

Judge Judith W. Rogers wrote the majority opinion, joined by Judge Tatel. Both were appointees of President Bill Clinton. Judge Karen L. Henderson, appointed by President George H.W. Bush, dissented.

The implications of the ruling are complex. Defendants have fewer protections in a military commission, and prosecutors may introduce “hearsay” evidence — statements made outside court by people who are not called as witnesses — that is generally not admissible in civilian courts.

But those lower standards of evidence may permit trials that produce sentences of defined length — an alternative to indefinite detention under the laws of war — for terrorism suspects who cannot be prosecuted in civilian court because the evidence against them would not be admissible.

Several detainees who received commission trials found that their convictions amounted to a ticket home after serving a sentence. Other detainees, who did not do anything specific enough to be charged, remain locked up indefinitely. Most of the 122 detainees remaining at Guantánamo have been held for 13 years.

It’s hard to say what the implications of this ruling will actually be for several reasons.

First of all, the Defendants in this case were not accused of actually committing, or plotting to commit, terrorist attacks against the United States or others. They were charged with providing material support of some kind to terrorist organizations such as fundraising and the like. This is important because the Court’s ruling that their prosecutions under the military tribunal system were unconstitutional because they were not charged with, and had not committed, any acts that would constitute an international war crime. Instead, the acts they were charged with are acts that are already considered violations of American law under the United States Code and, ordinarily, violations of those laws are prosecuted through the Federal Courts. Based on this, the Court ruled, there was no basis for denying these defendants the rights they would receive in that process. This distinction could be important because of what it would mean for those Gitmo prisoners who are actually accused of plotting or committing terrorist attacks, such as Khalid Shiekh Mohammed and the other who were involved in the September 11th attacks. Arguably, defendants such as these could still be tried under military commissions, but that will have to await further court proceedings.

Another reason why it’s unclear exactly what all of this means going forward is the simple fact that everything related to these Guantanamo Bay prisoners has moved so slowly through the legal system that it is likely to be years before we know for sure. Many of the men who are still being held at the facility have been there for ten years or more, and while there are still many who are eligible to be released to country’s willing to take them, that process has taken quite a long time not in the lease because the host country’s aren’t exactly eager to have people who ties to terrorism in their midst. Additionally, there are a not inconsiderable number of prisoners at Gitmo who are simply not going to be released at any point in the future. Mohammed and the other 9/11 plotters are most certainly among them, but there are others as well. Even if a Federal Court were to rule that they could not be tried via military tribunal, the reaction of whatever Administration is in power will likely be to just continue holding them indefinitely.

An additional problem that this ruling raises is the fact that there is presently no practical way to try these Defendants in Federal Courts. Mostly in reaction to an aborted effort by the Justice Department to try some 9/11 defendants in Federal Court in New York City, Congress has used legislation to circumscribe any effort by the Administration to try Gitmo detainees in a civilian court. That legislation remains in effect regardless of what this panel of Judge has decided, so it’s unclear how their ruling would actually result in civilian trials for these defendants or anyone else held at Guantanamo Bay.

Finally, of course, this ruling itself will most likely be appealed, either to the full D.C. Circuit at first or directly to the Supreme Court. While neither Court is obligated to accept that appeal, the importance of the issues raised suggests that they would be likely to do so if only to avoid whatever legal uncertainty would exist if this decision were allowed to be the last word on the subject. Generally, the Supreme Court especially has been rather deferential to the Federal Government in these cases dealing with Gitmo detainees, so there would seem to be a better than even chance that this decision could be overturned, in which case this panel’s decision will be a nullity.

Until that happens, though, this decision would seem to throw much of the military tribunal system into jeopardy and doubt.

Here’s the opinion:

Al Bahlul v. United States by Doug Mataconis

FILED UNDER: Law and the Courts, National Security, Terrorism, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    The very words “military tribunal” should appall any American.

    There are military courts to try people who violate military law in uniform. There are civilian courts for everything else.

  2. Well, these people generally are not Americans and most of them weren’t captured on American territory. We haven’t handled the legal issues surrounding international terrorism very well under either President we’ve had since September 11th really, but I’m also sympathetic to the argument that KSM and the people like him are something other than regular criminal defendants.

  3. michael reynolds says:

    @Doug Mataconis:

    I’m happy to drop KSM at some predetermined co-ordinates in Afghanistan three seconds ahead of a drone strike. No problem killing the man. We can do that without subverting our own judicial traditions.

    Bureaucratic creatures once established by government, such as military tribunals, have a tendency to cling to life, to find new purposes, to be used by unscrupulous pols. For example, Mexican drug lords are bad people, not US citizens, not soldiers, so hey, why not subject them to military tribunals? How about international kiddie pornographers?

    This is classic over-reaction plus the usual Bush administration lack of foresight or planning. These people should have been held in-country where they could be tried by the locals. Or taken out back and shot by Marines, I don’t really care, but they should not be the instrument for distorting our justice system. Jesus, it’s already a mess, it doesn’t need a competing system set up.

  4. Gustopher says:

    @michael reynolds: I’m not sure how summary execution bypassing the judicial system completely doesn’t distort our judicial system.

    While there is a precedent for it, even inside our country (see Cleveland, Baltimore, etc), it is not a precedent that we are proud of, or want to continue.

  5. Tyrell says:

    In 1865 a military tribunal was held in Washington: the infamous “trial” of the Booth conspirators. They were not allowed to testify. They wore hoods over their faces. Many of the trial documents and records of the trial, and pages of Booth’s diary are still classified, never to be released. The official autopsy report of Booth can not be found. This was a military trial of of civilians.

  6. Mikey says:

    @michael reynolds:

    This is classic over-reaction plus the usual Bush administration lack of foresight or planning. These people should have been held in-country where they could be tried by the locals.

    In Afghanistan circa 2002-2003? Who among the locals was going to try them? The locals who were giving them aid, shelter, and weapons?

    I’m generally much more sympathetic to the Bush admin’s actions in Afghanistan than Iraq, for the specific reason we knew what was going on in Afghanistan and what we had to do to stop it. Had we not blundered so stupidly and meaninglessly into Iraq, we might actually have helped put in place something resembling a stable and reliable government in Afghanistan. Sadly, Bush’s screw-up of Iraq cost Afghanistan as well.

  7. OzarkHillbilly says:

    Even if a Federal Court were to rule that they could not be tried via military tribunal, the reaction of whatever Administration is in power will likely be to just continue holding them indefinitely.

    But why Doug?

    An additional problem that this ruling raises is the fact that there is presently no practical way to try these Defendants in Federal Courts.

    But why Doug?

    Mostly in reaction to an aborted effort by the Justice Department to try some 9/11 defendants in Federal Court in New York City, Congress has used legislation to circumscribe any effort by the Administration to try Gitmo detainees in a civilian court. That legislation remains in effect regardless of what this panel of Judge has decided, so it’s unclear how their ruling would actually result in civilian trials for these defendants or anyone else held at Guantanamo Bay.

    Oh yeah, Congress has a majority of gutless pant wetters. Better send Lindsey another box of Depends.

  8. OzarkHillbilly says:

    @Mikey:

    for the specific reason we knew what was going on in Afghanistan and what we had to do to stop it.

    Maybe (I doubt it tho)… But the Bush Admin in no way shape or form was ever going to invest the kind of time or money into doing what was needed.

    Had we not blundered so stupidly and meaninglessly into Iraq, we might actually have helped put in place something resembling a stable and reliable government in Afghanistan.

    I find this to be wishful thinking, in the extreme, for the afore mentioned reason. Look at the way they fought that conflict: By ‘buying’*** war lords (the so called Northern Alliance) to do the fighting for us and giving them the arms with which to do it.

    ***the old saying goes, ‘You can’t buy an Afghani, but you sure can rent one.’

  9. Rafer Janders says:

    @Doug Mataconis:

    Well, these people generally are not Americans and most of them weren’t captured on American territory.

    So what? That doesn’t mean they didn’t violate American laws. A Mexican drug lord who smuggles drugs into the US also isn’t an American citizen and isn’t usually captured on American territory either, but they can certainly be tried in US courts for violations of US law.

    but I’m also sympathetic to the argument that KSM and the people like him are something other than regular criminal defendants.

    Are their acts targeted against America in violation of American law? Then they’re regular criminal defendants.

  10. Rafer Janders says:

    @Mikey:

    In Afghanistan circa 2002-2003? Who among the locals was going to try them?

    The Afghan government which was an avowed enemy of al Qaida and the Taliban?

  11. DrDaveT says:

    So what? That doesn’t mean they didn’t violate American laws.

    There are a couple of problems with that line of argument.

    First, it is not necessarily a crime to violate US law if you aren’t in the US and are not an American citizen. This is an obvious yet important point.

    Second, even if the actions are criminal by both US and local law, there may be no legal way to arrest the criminals and get them in front of a US court. For example, in Iraq after we had removed (but not replaced) the government, who had the legal authority to extradite an accused criminal to the US? More to the point, by what authority would anyone ever extradite (say) a Pakistani from Iraq to the US for crimes committed in Iraq?

    The US went the path of military tribunals in order to have a mechanism for the US to be the prosecutor of Iraqi or Pakistani or Yemeni nationals for actions committed in Afghanistan or Iraq. That problem with that (from their point of view) is that the international rules of war that apply in that case do not apply to noncombatants, and the definition of a combatant is pretty clear. Shooting at US troops makes you a combatant. Trying to blow them up makes you a combatant. Various other kinds of physical attacks on people or property also count. But my understanding is that conspiracy does not. Logistics support does not. Moral support or incitement or recruiting does not.

    Which means al-Bahlul should either have been prosecuted in the nation where he committed his crimes (if he actually committed a crime according to local law), or extradited by that nation to Yemen, to be prosecuted by the Yemeni according to Yemeni law. The US has no jurisdiction over someone who is not American and is not an enemy combatant.

  12. ernieyeball says:

    Looking Back at the Law
    The Miranda warning is born 49 years ago today

    As for Ernesto Miranda, though his original conviction was set aside by the Supreme Court ruling, he was retried and convicted, and was in jail until 1972–then in and out of jail several more times until 1976. After being released in 1976, he was fatally stabbed during a bar fight. His suspected killer was read his Miranda rights and didn’t answer questions from police. There was never a conviction in Miranda’s death.

    RIP Ernesto
    https://news.yahoo.com/miranda-warning-born-47-years-ago-today-095026390.html

  13. Tyrell says:

    @OzarkHillbilly: There are justifications and examples of holding or detaining a person indefinitely. To keep them from giving away some sort of secrets or classified information. Or to try and get important information from them.

  14. Mikey says:

    @Rafer Janders:

    The Afghan government which was an avowed enemy of al Qaida and the Taliban?

    Eh, maybe. I’m not convinced they’d have had the necessary stability that early on, but keeping the prisoners in country for several years wouldn’t have been much different in practical terms than keeping them in Gitmo (aside from the logistics of flying them to Cuba, of course).

  15. Mikey says:

    @OzarkHillbilly: It’s not wishful thinking to say “if even there was a chance, we wasted it.” Sure, Afghanistan may never have turned out any differently, but we never did what was necessary to even create the possibility it could have. The Iraq invasion stole both focus and resources and made it all but impossible to do what was necessary.

    Probably the “wishful thinking” part is believing the Bush administration would have been able to recognize what was necessary and put it into action.

  16. Barry says:

    @Tyrell: “There are justifications and examples of holding or detaining a person indefinitely. To keep them from giving away some sort of secrets or classified information. Or to try and get important information from them.”

    Or because the government can.

    And we’ve seen your justifications fade away as the facts come out.

    Note – we also see the government classify their use of torture, and use that to justify holding torture victims.