WASHINGTON (CN) — Deeply fracturing the judges of its en banc court, the D.C. Circuit upheld the conspiracy conviction of Osama bin Laden's assistant by the military commission at Guantanamo Bay.
Ali Hamza Ahmad Suliman al-Bahlul produced recruiting videos for al-Qaida and taped the wills of some of those who hijacked planes on Sept. 11, 2001.
Six years after his capture, the war court at Guantanamo convicted al-Bahlul in 2008 of conspiracy and giving material support for terrorism.
The U.S. Supreme Court put those convictions in question, however, with its finding in Hamdan v. Rumsfeld
that military commissions violated the Geneva conventions.
After considering the Military Commission Act of 2006, which listed the offenses that could be tried at Guantanamo, the banc D.C. Circuit in 2014 vacated
al-Bahlul's material-support conviction and remanded the issue of his conspiracy conviction to the original panel.
The court held a second en banc rehearing
late last year after the 2-1 panel vacated
al-Bahlul's last remaining conviction after finding that conspiracy is not a war crime.
Since conspiracy is neither an offense of international law nor a war crime, al-Bahlul's attorneys argued that Congress exceeded its constitutional authority by authorizing the Guantanamo military commission — rather than a jury in an Article III federal court — to try him.
Weighing the separation-of-powers issues that the case presents, the court upheld al-Bahlul's conviction 6-3 on Thursday.
The plurality splintered as to how they reached their finding, however, resulting in four concurring opinions to the unsigned decision, plus one dissent. Together the opinions clock in at 163 pages.
U.S. Circuit Judges Karen Henderson, Brett Kavanaugh, Janice Rogers Brown and Thomas Griffith all found that Congress and the president are authorized to let military commissions try enemy combatants for conspiracy outside international laws-of-war under the Define and Punish Clause of Article I of the Constitution, along with historical precedent dating back to the Civil War.
"Indeed, perhaps the most telling factor when considering this constitutional question is the deeply rooted history of U.S. military commission trials of the offense of conspiracy, which is not and has never been an offense under the international law of war," Kavanaugh's opinion states, joined by Brown and Griffith.
The opinion says later: "An enemy of the United States who engages in a conspiracy to commit war crimes — in Bahlul's case, by plotting with Osama bin Laden to murder thousands of American civilians — may be tried by a U.S. military commission for conspiracy to commit war crimes."
U.S. Circuit Judges Patricia Millett and Robert Wilkins meanwhile declined to address that issue definitively in their own opinions.
There was no division among the three judges behind Thursday's 67-page joint dissent.
"Too much is at stake to affirm," U.S. Circuit Judges Judith Ann Wilson Rogers, David Tatel and Nina Pillard wrote.
The dissenters warned that "history and precedent have established a narrow, atextual exception to Article III under which the military may try enemy belligerents for offenses against the international 'laws of war,' but inchoate conspiracy is not such an offense."
"The challenges of the war on terror do not necessitate truncating the judicial power to make room for a new constitutional order," the judges added.
Though two members of the court did not participate in Thursday's ruling, but their votes would not have changed the tide for al-Bahlul. The ruling says U.S. Circuit Judge Sri Srinivasan did not participate in the matter.
Chief U.S. Circuit Judge Merrick Garland did not participate in the ruling despite having sat through December oral arguments. Tapped in March to fill the Supreme Court seat of the late Justice Antonin Scalia, Garland has spent the past seven months awaiting an increasingly unlikely confirmation hearing by the U.S. Senate.
The judges in Thursday's plurality drew heavily on the history of the use of military commissions in the United States, noting that in 1776 the Continental Congress codified two non-international law-of-war offenses - spying and aiding the enemy - and made them triable by military tribunal.
The First Congress followed suit in 1789 after the Constitution was ratified. When Congress updated those provisions in 1806, it preserved them as triable by military tribunal.
Congress went beyond international law again in 2006 and 2009, making solicitation and material support for terrorism triable by military commission under the Military Commissions Act.
The 2006 Military Commissions Act, under which Bahlul was charged and tried, also made conspiracy a punishable act. In essence, Bahlul challenged the constitutionality of that legislation by asking the court to overturn his conviction.
But consistent congressional practice warrants respect, Kavanaugh's opinion states.
"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," Kavanaugh wrote.
Kavanaugh warned later: "That historical and contemporary practice cannot be airbrushed out of the picture. Prosecuting conspiracy and other non-international-law-of-war offenses is not at the periphery of U.S military commission history and practice. Prosecuting conspiracy and other non-international-law-of-war offenses lies at the core of U.S. military commission history and practice."
After al-Bahlul joined al-Qaida in the late 1990s, the native Yemeni created an al-Qaida recruitment video celebrating the group's October 2000 attack on the U.S. Navy destroyer the USS Cole, which killed 17 sailors and injured 39.
Al-Bahlul later became a personal assistant to Osama bin Laden and helped prepare for the 9/11 attacks.
Millett's opinion says the circumstances of the challenge offer "far too murky a foundation from which to launch this court into applying an unwarranted standard of review to adjudge the constitutionality of a joint exercise by the president and the Congress of their national security and war powers."
Guantanamo chief prosecutor, Army Brig. Gen. Mark Martins, has long argued that the current iteration of the military commissions derives its authority from what he contends is a constitutionally authorized joint exercise of power, an assertion he echoed numerous times during recent pretrial hearings at Guantanamo.
Kavanaugh's opinion emphasizes that the high court has never explicitly said that only international law of war offenses are constitutionally triable under military commissions.
"One would have expected the court to say as much if the court actually thought as much," he wrote.
The dissenters disagreed on this point.
"For over seventy years, the [Supreme] Court has treated the phrase 'law of war' as referring to a body of international law, thus reinforcing the idea that Quirin
recognized an Article III exception for international law-of-war offenses," they wrote, invoking the 1942 Supreme Court ruling in Ex parte Quirin
Trying Bahlul for conspiracy clearly violates constitutional separation-of-power principles, the dissenters said.
"Whatever deference the judiciary may owe to the political branches in matters of national security and defense, it is not absolute," they wrote. "Far from it, it is the duty of the courts 'in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty.'"
Emphasizing the timing earlier in the ruling, the dissenters called it critical to determine the constitutionality of expanding military "as our nation enters a new era in which many of the traditional constraints on the political branches' authority to prosecute individuals in military commissions — including wars' temporal limits and the presence of clearly defined enemies — are dissipating."
Military commissions were intended to deliver swift justice during battle, the dissenters state.
"In recent years, the uncertainty surrounding the legal limits on military commissions has made this form of justice anything but swift," they wrote.
To this point, pretrial proceedings in the three active military commissions cases have crawled at a snail's pace for the last 4 1/2 years.
The dissenters called it "unwise" to put off final resolution of the military commissions' authority to preside over conspiracy charges. Though it may be able to detain al-Bahlul, the government cannot "switch the Constitution on and off at will," the opinion states.
Guantanamo defenders have long complained that the military commissions refuse to clearly delineate constitutional parameters of the proceedings. The most recent round of pretrial hearings in the 9/11 and USS Cole bombing cases earlier this month touched on these very issues.
In many ways, the recent opinion mirrors many of the arguments litigated and debated in the current cases in the military commissions system, but falls short of offering an authoritative answer.
The dissenters conclude by noting that only four of the nine judges considering the question de novo answered it affirmatively.
"Accordingly, the majority of judges declines to endorse the government's view of the Constitution," the dissent states. "Today's decision thus provides no precedential value for the government's efforts to divert the trial of conspiracy or any other purely domestic crime to law-of-war military commissions."
On the way back from two weeks of military commission pretrial proceedings at the Guantanamo Naval Base, Guantanamo chief prosecutor Army Brig. Gen. Mark Martins declined to comment on the ruling's potential impact.
Chief defense counsel Marine Col. John Baker also declined to comment on the opinion.