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Media Alerts - Ali Hamza Ahmad Suliman Al Bahlul v. United States
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July 15, 2014
  Ali Hamza Ahmad Suliman Al Bahlul v. United States
Headline: Ex Post Facto Clause no bar to conspiracy charge against Guantanamo-based 9/11 conspirator tried under the Military Commission Act of 2006.

Area of Law: Ex Post Facto Clause; Military Commission Act (MCA) of 2006; International Law

Issue(s) Presented: Whether, consistent with the Military Commission Act of 2006 and the Ex Post Facto Clause, the government can prosecute a 9/11 conspirator detained at Guantanamo for conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes.

Brief Summary: Bahlul, a native of Yemen, joined al Qaeda in Afghanistan in the late 1990s and worked his way into Osama bin Laden's inner circle. He produced recruitment videos celebrating the suicide bombing attack on the U.S.S. Cole and was intimately involved in the planning and execution of the 9/11 terrorist attacks. Bahlul was captured in Pakistan in December 2001 and transferred to the U.S. Naval Base at Guantanamo Bay, where U.S. forces have detained him ever since as an enemy combatant.

Initial charges against Bahlul were stayed pending the Supreme Court's decision in Hamdan v. Rumsfeld. After the Hamdan court found that the military commission procedures then in place violated the Uniform Code of Military Justice and the four Geneva Conventions of 1949, Congress enacted the Military Commission Act of 2006, which attempted to cure those procedural flaws. In 2008, military prosecutors renewed charges against Bahlul for conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes. Bahlul admitted all of the underlying factual allegations but challenged the legitimacy of the military commission. The commission convicted him of all three offenses and sentenced him to life imprisonment. Bahlul appealed. During the pendency of Bahlul's appeal, a panel of the United States Court of Appeals for the District of Columbia Circuit held, in Hamdan II, that the 2006 MCA did not authorize retroactive prosecution for conduct not already subject to criminal sanction before passage of the act and that providing material support for terrorism was not a pre-existing war crime triable by military commission. Applying Hamdan II, a panel of the D.C. Circuit vacated Bahlul's conviction on all counts. The government successfully petitioned for rehearing en banc. In its appeal, the government conceded that the Ex Post Facto Clause applied to trials by military commission pursuant to the MCA.

The en banc majority reversed as to the conspiracy claim and affirmed the vacatur of the material support and solicitation claims. The court began by overruling Hamdan II on the basis that the MCA unambiguously proclaims its retroactive effect, thus precluding application of the constitutional "avoidance canon." Because Bahlul had not raised an Ex Post Facto claim below, however, the majority reviewed only for plain error. The majority assumed, without deciding, that the Ex Post Facto Clause applied to military commission proceedings given the government's concession on appeal. The court found no merit to Bahlul's Ex Post Facto challenge to the conspiracy conviction on two alternative grounds. First, the court found that conspiracy was already criminalized under other federal statutes, and, while the elements of conspiracy under the MCA differed from statutory conspiracy, those differences did not seriously affect the fairness, integrity, or reputation of the commission's proceedings. Second, the court noted that the Supreme Court had not resolved the question of whether conspiracy to commit war crimes was a law-of-war offense triable by a military commission. Given the Supreme Court's inability to resolve the issue, the majority reasoned, it could not be "plain error" for a military commission to hear the claim. Turning to the other two charges, material support and solicitation, the court agreed with Bahlul that they were not subject to criminal sanction prior to the enactment of the MCA and that the prosecution of these claims was therefore foreclosed by the Ex Post Facto Clause. The court rejected the government's claims that prosecutions for material support dated back to the Civil War, finding that the examples cited did not "establish that such conduct was tried by law-of-war military commissions" and that the comparison was "too distinguishable and imprecise." The court further held that solicitation was "plainly not traditionally triable" and thus upheld Bahlul's Ex Post Facto challenge.

The panel majority was joined in its entirety by four of seven judges. Several judges wrote separately, each grappling with the government's concession that the Ex Post Facto Clause applies in the military commission context and taking issue with the majority's decision to review for plain error rather than to definitively resolve the question.

For the full text of the opinion, please visit

Panel (if known): En banc

Argument Date (if known): September 30, 2013

Date of Issued Opinion: July 14, 2014

Docket Number: 11-1324

Decided: Affirmed in part and reversed in part.

Case Alert Author: Albertine Guez

Counsel (if known): Michel Paradis, Mary R. McCormick, and Todd E. Pierce for petitioner. Ian H. Gershengorn, Steven M. Dunne, John F. De Pue, Jeffrey M. Smith, Francis A. Gilligan and Edward S. White for respondent.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/15/2014 06:34 PM     DC Circuit  

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