Petitioner Ali al Bahlul, the Yemeni detainee who served as Osama bin Laden's personal assistant and public relations secretary, has just filed his opening brief in Al Bahlul v. United States, in an attempt to overturn his military commission conviction for conspiracy to commit war crimes.
In the filing, al Bahlul argues that he was tried for three inchoate domestic law crimes, none of which are offenses under international law and none of which contend that he perpetrated or had foreknowledge of a terrorist attack. Noting that the D.C. Circuit vacated his conviction on two of the charges (material support and solicitation) back in July, al Bahlul presents four reasons why his conviction on the conspiracy charge should also be vacated:
First, law-of-war military commissions can only try offenses that are plainly established under “the rules and precepts of the law of nations, and more particularly the law of war.” Ex parte Quirin, 317 U.S. 1, 28 (1942). Congress’ power to codify those offenses emanates from its power to “Define and Punish … Offenses against the Law of Nations.” Article I § 8, cl. 10. In the three cases in which the Supreme Court has upheld the legality of law-of-war military commissions, it was because at least one of the offenses charged was plainly established under international law as an offense against the law of war. Johnson v. Eisentrager, 339 U.S. 763, 786-87 (1950); In re Yamashita, 327 U.S. 1, 14 (1946); Quirin, 317 U.S. at 43. Because conspiracy does not meet that standard, a fact that the government readily concedes, Congress cannot presume to define it as such or punish it in a law-of-war military commission.
Second, law-of-war military commissions are Executive Branch tribunals that cannot encroach upon the Article III judicial power to try purely domestic crimes. Where the three Supreme Court cases to affirm the use of military commissions did so because they were being used to try law of war offenses under international law, the four Supreme Court cases to invalidate military commissions did so, at least in part, because they had attempted to usurp the jurisdiction reserved to the courts at common law. Hamdan v. Rumsfeld, 548 U.S. 557, 602 (2006) (plurality op.); Duncan v. Kahanamoku, 327 U.S. 304, 322 (1946); Ex parte Milligan, 4 Wall. 110, 121 (1866); Jecker v. Montgomery, 13 How. 498, 515 (1851). The trial of inchoate criminal conspiracies is a classic example of the exercise of the judicial power at common law. The effort to now give that power to an Executive Branch tribunal presents only the latest and most brazen challenge to the separation of powers that the courts have rejected each time it was attempted.
Third, in prosecuting Bahlul for authoring a film that made a “political argument,” App. 198, the government openly put “the thoughts, the beliefs, the ideals of the accused” on trial. App. 209. Doing so violated basic First Amendment restraints on the government’s prosecutorial power that this Court must require these commissions to obey if broadly associational domestic law crimes like conspiracy are now going to be triable by panels of military officers.
Fourth, the statute under which Bahlul was tried made alienage a condition for personal jurisdiction. By codifying animus toward a politically disenfranchised class, Congress violated the Fifth Amendment’s basic requirement for equal justice under law. This de jure segregation of criminal defendants is contrary to centuries of tradition under which citizens were not only triable, but were tried, for war crimes in the same military commissions as non-citizens.
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