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:
