Two amicus briefs were delivered today in the en banc phase of GTMO detainee Ali Hamza Ahmad Suleiman Al-Bahlul's appeal to the D.C. Circuit. The accused, as readers well know, was convicted by a military commission for, among other things, standalone conspiracy. The first brief, from former government officials, scholars and military lawyers (disclosure: Ben and Ken are amici on this brief), is available here, and advances these four principal arguments in support of the government:
- Conspiracy as a mode of liability for a completed war crime is recognized in international law and supported by the record and findings in the instant case;
- The defendant's conviction complies with the Ex Post Facto Clause;
- The error in the initial conspiracy charge was harmless because Al-Bahlul had fair notice of the charges against him and an adequate opportunity to prepare a defense; and
- The record and findings demonstrate that the instructions' failure to require a finding of a completed war crime was harmless error.
The second brief comes from the Washington Legal Foundation and a number of retired military officers, including Major General John Altenberg. Here are the brief's main points:
- The doctrine of constitutional avoidance is inapplicable because the MCA cannot plausibly be interpreted as applying only retrospectively.
- In seeking protection under the Ex Post Facto Clause, Bahlul faces a strong presumption that nonresident aliens without constitutional connection to the U.S. may not invoke constitutional rights.
- The Ex Post Facto Clause is intended to serve purposes that are of limited relevance to the prosecution of nonresident aliens.
- At most, Guantanamo detainees are entitled to invoke constitutional provisions that reinforce fundamental human values, such as protection against torture and summary execution.
There's a host of resources on this case on our Wiki Page. On the blog most recently, we noted both Al-Bahlul counsel Michel Paradis's response to a D.C. Circuit query regarding Al-Bahlul's interest---or not---in continuing with his appeal, as well as the government's en banc brief.