Ali Hamza Ahmad Suliman Al-Bahlul served as Osama Bin Laden’s videographer and public relations secretary. He was captured in Pakistan in 2001, transferred to GTMO in 2002. He was convicted by a military commission for conspiracy and material support for terrorism, and solicitation. This conviction was affirmed by the Court of Military Commission Review but then vacated by the U.S. Court of Appeals for the District of Columbia in a panel decision that was then itself vacated by the full court. Rehearing en banc was then ordered, and the case is awaiting further briefing and oral argument.
Background and Affiliation with Al Qaeda
The basic facts of Al-Bahlul’s conduct, according to the Court of Military Commission Review’s opinion, are as follows:
Captured in Pakistan in 2001 and turned over to the U.S. military. In 2002, he was transported to GTMO.
Appellant, a self-described “officer” in al Qaeda, joined that group with knowledge that al Qaeda engaged in terrorism and did so in complete agreement with Usama bin Laden’s declarations that all Americans and anyone in the United States were legitimate targets of armed attack. Following completion of al Qaeda’s military-like training, appellant met personally with bin Laden, discussed al Qaeda’s view of itself as a government in exile for the Muslim world engaged in jihad (or “holy war”) with the United States, and pledged his personal fealty, including his willingness to die for bin Laden and al Qaeda.
Bin Laden then assigned appellant to al Qaeda’s media office and later as his personal assistant/secretary for public relations. Appellant’s conduct in those positions and membership in al Qaeda provide the factual basis for his convictions of: (1) providing material support and resources to al Qaeda; (2) conspiring with bin Laden and others to, inter alia, commit murder, attack civilians and civilian objects, commit terrorism, and provide material support for terrorism; and (3) soliciting various persons to commit those same offenses.
Military Commission Case
- Charged (2004) with providing material support, conspiracy, and solicitation; Record of Trial (Volumes 1, 2, 3, 4, 5, 6, 7)
- Case stayed (record of trial–.zip file) and then put in abeyance pending the Supreme Court’s decision in Hamdan v. Rumsfeld
- Recharged (Feb 2008): After the 2006 Military Commissions Act was passed to comply with Hamdan, Bahlul was recharged under the new law (February 2008), and those charges were referred to a military commission. Al Bahlul and his defense counsel did not put on a defense.
- Record of Trial (Volumes 1, 2, 3, 4, 5)
- Finding (Nov 2008): guilty on each charge, sentenced to confinement for life
- Approval (June 2009): Convening Authority approved the findings and sentence
- State of the Ummah Video:
Appeal of Military Commission Conviction
Court of Military Commission Review
- Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006).
- In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation? See Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).
- His convictions must be reversed as none of his charged offenses constitute war crimes triable by military commission.
- His conviction for providing material support for terrorism must be reversed as that charge violated the Ex Post Facto Clause of the U.S. Constitution and the term “material support” was erroneously defined by the military commission judge.
- He was convicted on the basis of political speech in violation of the First Amendment of the U.S. Constitution.
- The 2006 M.C.A. is an unconstitutional Bill of Attainder.
- The 2006 M.C.A. violates the Constitution’s Equal Protection Clause by making aliens, but not citizens, subject to trial by military commission.
- A sentence of life imprisonment is inappropriately severe and disproportionate to the sentences of closely-related defendants.
Government (response brief)
Court: affirmed conviction (September 2011)
Court of Appeals for the District of Columbia Circuit
- Whether this law-of-war commission had jurisdiction over charges of conspiracy, solicitation, and material support for terrorism, which were not recognized offenses against the law of war at the time of Mr. Bahlul’s conduct.
- Whether Mr. Bahlul’s conviction violates the First Amendment, where his trial centered on a political film and the jury convicted him on the basis of political advocacy that did not rise to the level of criminal incitement.
- Whether the Military Commissions Act, whose procedures apply to aliens alone, violates the equal protection component of due process.
- The military commission convened to try Mr. Bahlul lacked jurisdiction over the charges.
- Mr. Bahlul’s trial infringed Constitutionally-protected speech.
- Congress improperly targeted aliens alone for prosecution by military commission.
Government (response brief):
- Military commissions are a lawful and reasonable means of addressing the threat posed by al Qaeda and its associated forces.
- Bahlul’s convictions did not violate the First Amendment. Bahlul’s contention that he was convicted merely for making an offensive video mischaracterizes the trial record.
- Congress’s decision to limit the jurisdiction of military commissions to alien unlawful enemy combatants satisfies the rational basis test that applies in this context.
Arguments in light of Court’s decision in Hamdan II
- Military Commissions only have jurisdiction over offenses firmly grounded in international law.
- None of the offenses charged here (materials support, conspiracy, solicitation) are firmly grounded in international law.
- The government is bound by the constitution when it conducts a criminal trial.
Government (supplemental brief):
- Hamdan II Requires That Bahlul’s Convictions for Material Support, Conspiracy, and Solicitation Be Reversed
- The Legal Rationale in Hamdan II Is Incorrect
- Bahlul’s Convictions For Material Support, Conspiracy, and Solicitation Are Consistent with the Constitution and Applicable Law
Court: vacates Al-Bahlul’s military commission convictions.
Government Petition for Rehearing en banc
[T]hat in a parallel military commission case, Hamdan II, another panel of the D.C. Circuit had misconstrued the 2006 Military Commissions Act, in concluding that the accused could not be prosecuted for material support for terrorism, with respect to pre-2006 conduct; second, that the same Hamdan II panel likewise misread Article 21 of the Uniform Code of Military Justice; and third, that the scope of the military commissions’ jurisdiction—very much at issue here—amounts to an issue of exceptional importance.
In the end, the government has failed to show why this Court’s decisions are exceptional, let alone exceptionally in error. Its arguments were fully briefed before two panels of this Court and have been unanimously rejected at every turn. Its claims of exceptional importance reduce to preserving the conviction in this case and Hamdan II’s theoretical impact on a trifling handful of legacy cases to arise out of Guantanamo Bay. If the government feels that it needs its interpretation of the 2006 Act to prevail as a policy matter, it can try and persuade the Supreme Court to overturn its precedents or Congress to re-amend the law. The government has not, however, given this Court any reason to believe that the time and resources required to rehear this case en banc will be well spent.
Court: grants petition for rehearing en banc, orders parties to respond to two questions:
- 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?
- 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?
En Banc Hearing
- The 2006 Act can only be applied to offenses that were recognized under international law as war crimes when they were allegedly committed.
- The Ex Post Facto Clause applies at Guantanamo.
- Inchoate conspiracy is not a violation of the law of war.
- The 2006 MCA authorizes the prosecution of conspiracy, solicitation, and material support for terrorism offenses for conduct committed before its enactment.
- Bahlul’s convictions did not violate the Ex Post Facto clause.
- Bahlul’s additional constitutional arguments lack merit.
- Brief of National Institute of Military Justice in Support of Petitioner
- Brief of Former Government Officials, Military Lawyers and Scholars in Support of Respondent
- Brief of Constitutional Accountability Center
- Brief of Constitutional Law Scholars in Support of Petitioner
- Brief of Law Professors David Glazier and Gary Solis in Support of Petitioner
- Brief of International Law Scholars in Support of Petitioners
- Brief of the Washington Legal Foundation and Retired Military Officers in Support of Affirmance
September 30, 2013 Oral Argument (audio)
Other Motions and Briefing in the D.C. Circuit Appeal
- Government motion to dismiss or to require petitioner’s counsel to demonstrate authority to pursue the appeal (October 31, 2011).
[T]he United States has strong reason to believe that petitioner Ali Hamza Ahmad Suliman al Bahlul has rejected efforts by his appointed appellate counsel, Mr. Michel Paradis, to represent him on appeal and has, in fact, instructed Mr. Paradis not to prosecute an appeal on his behalf. The government did not set out to police or investigate this matter; nevertheless, as explained below, the evidence in the two declarations attached to this Motion rebuts any presumption that Mr. Paradis has been authorized to pursue an appeal in this Court on al Bahlul’s behalf, and therefore Mr. Paradis must demonstrate affirmatively that al Bahlul has authorized him to do so.
Although it is in the government’s interest to address and resolve the issues relating to military commissions presented by this appeal, this appeal cannot proceed absent resolution of the fundamental jurisdictional question whether al Bahlul has authorized Mr. Paradis to pursue an appeal on his behalf. The government therefore seeks an order from this Court requiring Mr. Paradis to establish that he has authority from al Bahlul to pursue this appeal. If Mr. Paradis cannot provide proof of such authority from the petitioner, then this appeal should be dismissed.
This Court should reject the government’s proposed inquest into Mr. Bahlul’s relationship with his counsel. Congress set up an appeals process for military commissions that is modeled on the Uniform Code of Military Justice. 10 U.S.C. §§ 801, et seq. Under that process, a criminal defendant has a right of appeal to both the Court of Military Commission Review (“CMCR”) and to this Court. 10 U.S.C. §§ 950f, 950g. A defendant can forfeit his appellate rights by executing a waiver within ten days after the Convening Authority’s action, or withdrawing his appeal anytime thereafter. 10 U.S.C. § 950c(b) & (c). Congress has prescribed rules to ensure that military commission defendants’ relinquishment of their appellate rights is knowing, intelligent and voluntary, and the Secretary of Defense has specified procedures that further reinforce this requirement.
There is no provision for an appeal to be deemed withdrawn by implication. There is no evidence in the record that Mr. Bahlul waived his rights of appeal. By the government’s own admission Mr. Bahlul knows how to terminate his appeal if he so chooses and has declined every opportunity to do so. Rather than evidence that Mr. Bahlul does not wish his appeal to be pursued, all that the Government has offered this Court are statements he has made to challenge the authority of his military commission and express dissatisfaction with the entire process. Far from being grounds to terminate the appeal, or question it going forward, his objections echo the very grounds on which he now appeals.
Absent a far clearer showing that the process Congress put in place has broken down, this Court should deny the government’s motion so that this case may proceed without further delay.
- Court: Motion to dismiss denied:
Respondent has not demonstrated the requested relief is warranted. The Military Commission Act directs that a person convicted by military commission “shall be represented” before this court by appellate counsel appointed under procedures established by the Secretary of Defense. 10 U.S.C. § 950h(a), (c). As respondent acknowledges, petitioner’s counsel was duly appointed by the Chief Defense Counsel. Respondent’s evidence does not provide an adequate basis for the court to question counsel’s authority to represent the petitioner in this case.
- Petitioner motion for rehearing en banc:
Petitioner makes his request because two of this Court’s panels have been presented with substantially different and arguably conflicting arguments respecting the scope and interpretation of the Military Commissions Act (codified as amended at 10 U.S.C. §§ 948a, et seq.) (“the Act”). This Court’s interpretation of this statute is an issue of first impression and exceptional importance both to the public and to Mr. Bahlul, insofar as the arguments he has raised may be precluded by an intervening decision in another case.
- Court: Motion for rehearing en banc summarily denied.
- Government files 1945 memorandum arguing that conspiracy is a violation of the law of war (cover letter, memorandum)
- Bahlul request for clarification on briefing instructions for en banc panel:
Petitioner’s counsel requests clarification as to whether the Court wishes Petitioner to submit a full briefing of the case, to include the equal protection and First Amendment issues raised before the panel or, in the alternative, whether Petitioner may rely on the briefs submitted to the panel for those two issues.
- Court: order responds that “The requested briefs should not include the two issues — Equal Protection and First Amendment — mentioned in the motion because neither issue is within the scope of the rehearing en banc.”
- On Bahlul’s willingness to go forward with the case
- Bahlul (handwritten note): detainee indicated he wished to withdraw his case.
- Bahlul Counsel (counsel submission): clarifying that detainee does wish to continue his appeal.
- Court: Orders Bahlul to answer personally if he wishes to continue challenging his military commission conviction.
- Bahlul Counsel (first response to court order, second response): explaining delay in court’s receipt of a response from the detainee.