Terrorism Trials: Military Commissions

Amicus Briefs in Al-Bahlul v. U.S.: Former Gov't Officials, Military Lawyers & Scholars, And the Washington Legal Foundation

By Raffaela Wakeman
Thursday, July 25, 2013, 7:00 PM

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:

  1. 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;
  2. The defendant's conviction complies with the Ex Post Facto Clause;
  3. 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
  4. 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:

  1. The doctrine of constitutional avoidance is inapplicable because the MCA cannot plausibly be interpreted as applying only retrospectively.
  2. 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.
  3. The Ex Post Facto Clause is intended to serve purposes that are of limited relevance to the prosecution of nonresident aliens.
  4. 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.