Detention: Law of: D.C. Circuit Development

Three More Amicus Briefs in Support of Petitioner in Al Bahlul v. United States

By Jane Chong
Tuesday, August 19, 2014, 9:31 AM

Yesterday we flagged two amicus briefs filed on behalf of the petitioner in al-Bahlul v. United States by (1) the National Institute of Military Justice and (2) Professor David Glazier of Loyola Law School. The day saw three more briefs filed on Ali al-Bahlul's behalf, each presenting different arguments for why the D.C. Circuit should reverse al-Bahlul's military-commission conviction for conspiracy to commit war crimes. (3) Amicus brief of the Japanese American Citizens League, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice---AAJC, Asian American Advancing Justice---Asian Law Caucus, Asian Americans Advancing Justice---Los Angeles, and the National Asian Pacific American Bar Association In their filing, amici take aim at what it describes as two different systems of justice for citizens and non-citizens. The argument is two-part. First, the Military Commissions Act triggers, and fails, heightened scrutiny under the Equal Protection Clause by according non-citizen criminal defendants lesser rights. Second, amici cite the internment of Japanese citizens during World War II and McCarthy-era political repression as historical examples of how national security measures directed specifically against non-citizens often lead to widespread abridgment of citizens' rights. (4) Amicus brief of Robert D. Steele and other former members of the U.S. intelligence community Amici argue that al Bahlul's conviction and sentence to life imprisonment amount to punishment for First Amendment-protected speech---specifically, for his role in creating a 2001 propaganda video directed towards a U.S. audience, titled State of the Ummah, compiled from already publicly available information. Not only would failing to apply constitutional protections to the video interfere with Americans' First Amendment "right to know," amici argue, it would actually also damage national security by interfering with open source intelligence relied upon by the Intelligence Community. (5) Amicus brief of the First Amendment Scholars and Historians and the Montana Pardon Project Amici urge the D.C. Circuit to consider the First Amendment implications of allowing al-Bahlul's conviction to stand, and highlight several prominent historical examples of when the U.S. government overstepped its bounds by punishing citizens or non-citizens for expressing their beliefs, only to pardon the alleged offenders later. Arguing that al-Bahlul's work in creating State of the Ummah constitutes religious speech that "inspired" others to act, rather than an incitement to murder, amici argue that it thus falls beyond the historical reach of war crimes tribunals or prosecution in a military commission.