By Andy Worthington, August 26, 2014
Last week, lawyers for former Guantánamo prisoner David Hicks, an Australian who, in March 2007, was the first Guantánamo prisoner to accept a guilty plea in a military commission trial in order to get out of the prison, appealed his conviction -- for the second time in the last ten months.
Hicks had accepted a plea of providing material support for terrorism in exchange for being returned to Australia and being freed after just nine months. However, in October 2012 the court of appeals in Washington D.C. (the D.C. Circuit Court) threw out the conviction of another prisoner who had been convicted of providing material support for terrorism in a military commission trial, paving the way for Hicks to challenge his conviction.
That man was Salim Hamdan, a Yemeni who had worked as a paid driver for Osama bin Laden, and who had been convicted in the summer of 2008. As the Circuit Court described it, "When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime."
Last October, as I explained at the time:
[Hicks] lodged an appeal with the U.S. Court of Military Commission Review, "arguing for a summary dismissal of the conviction," as the Sydney Morning Herald described it, "because the offence was not a war crime at the time Mr. Hicks was detained, and his guilty plea was made under duress because of his detention, torture and abuse at Guantánamo."
The court has not yet heard that appeal, but on August 20 Hicks submitted another appeal to the Court of Military Commission Review, asking the court to "summarily vacate his conviction for a single charge of providing material support for terrorism," as his lawyers explained in a summary of their submission to the court, adding, "He argues that his conviction must be vacated based on the D.C. Circuit’s en banc decision in Bahlul v. United States, which holds unanimously that it is unlawful to try a defendant by military commission for material support based on pre-2006 conduct."
Ali Hamza al-Bahlul's crucial challenges to the legitimacy of the military commissions
Bahlul v. United States refers to the case of another prisoner convicted in a military commission trial, Ali Hamza al-Bahlul, who also won his appeal in the D.C. Circuit Court -- in January 2013. A Yemeni who had produced a promotional video for al-Qaeda, al-Bahlul had been given a life sentence in November 2008 after a one-sided trial in which he had refused to mount a defense.
As I explained at the time, the court of appeals "vacated his conviction for material support, conspiracy, and another charge, solicitation, citing a supplemental brief filed by the government on January 9, 2013, advising the Court that it took the 'position that Hamdan requires reversal of Bahlul’s convictions by military commission.'"
Following that ruling, the government appealed, and the en banc court -- the full court rather than a three-judge panel -- heard the case on September 30 last year, and delivered its verdict on July 14, prompting Hicks' latest challenge.
In five separate opinions totalling 150 pages, the judges, as Hicks' lawyers described it, "were entirely clear on one point: all seven judges agreed that providing material support for terrorism is not a war crime triable by military commission based on conduct occurring prior to 2006, even for a defendant who gave up that argument at trial."
As his lawyers also noted:
The Bahlul court held that the Act did authorize retroactive prosecution of material support, but also held unanimously that material support is not an international war crime, or an offense historically triable by military commission under domestic precedent, and thus was a "plain" constitutional violation as applied to conduct before 2006. The court vacated Mr. Bahlul’s material support conviction accordingly.
His lawyers added that the Bahlul ruling requires his material support conviction to be dismissed, because it "is based on his alleged conduct occurring more than a decade ago." and Hicks "argues that it is beyond any dispute that he was convicted of an offense that was not actually a crime at the time of his alleged conduct." His alleged guilt, the lawyers conclude, "is illusory, and he asks the CMCR to … vacate his conviction because there is no point in further delaying this inevitable result."
Wells Dixon at the Center for Constitutional Rights, which worked on the filing, told the Miami Herald, "No matter how this case is framed, David Hicks was convicted of a non-offense. The principled and just result is to set aside his conviction without delay, as would happen in any ordinary criminal case."
This seems clear, but what is not yet known is how much the latest Bahlul ruling will affect the future of the military commissions, which are still limping along with seemingly endless pre-trial hearings in the cases of Khalid Sheikh Mohamed and four other men accused of planning and assisting the 9/11 attacks, and Abd al-Rahim al-Nashiri, accused of being involved in the attacks on the USS Cole in 2000.
As a result of the Hamdan and Bahlul rulings, the authorities at Guantánamo abandoned efforts to prosecute anyone who was solely charged with providing material support, as I explained in an article in June 2013, "U.S. Military Admits Only 2.5 Percent of All Prisoners Ever Held at Guantánamo Will Be Tried."
In the July ruling, the D.C. Circuit Court not only confirmed that al-Bahlul's material support conviction was overturned, but also confirmed that his conviction for soliciting others to commit war crimes was overturned as well. As veteran court reporter Lyle Denniston explained for SCOTUSblog, "The court ruled that a military commission did not have the authority to try those other two charges for conduct that occurred before Congress created such crimes in the Military Commissions Act of 2006."
However, on the third count on which he was initially convicted, conspiracy to commit war crimes, the D.C. Circuit Court rejected a constitutional challenge brought by al-Bahlul, but did so, as the National Law Journal explained, in "a fractured ruling that left unclear how future cases against terrorism suspects might proceed."
Lyle Denniston also explained that, constitutionally, the most important part of the ruling was the conclusion, by five of the judges, that the Ex Post Facto Clause, which "bars criminal prosecution for conduct that happened before it was made a crime," applies to Guantánamo prisoners facing war crimes charges. Until this ruling, Denniston pointed out, prisoners at Guantánamo "have had only one constitutional right: to pursue habeas challenges to their continued detention."
He also explained that the ruling on the Ex Post Facto Clause means that, "in each case pursued by military prosecutors at Guantánamo, they must show that the conduct being treated as a crime was in fact formally made a crime by act of Congress at the time." This, he noted, "requires the prosecutors to examine the scope of the Military Commissions Act of 2006, and compare it to the history of U.S. military commission prosecutions going back at least to the Civil War."
In addition, despite the ruling on conspiracy, the D.C. Circuit Court indicated that it might be dependent on other challenges that were not addressed by the en banc panel of judges, and, as Lyle Denniston put it, "ordered the three-judge panel that originally had heard Bahlul’s appeal to rule on them first."
Once those challenges have been examined, al-Bahlul's case will return to the Court of Military Commission Review to ascertain what impact the rulings should have on his life sentence.
Al-Bahlul launches another legal challenge
In the meantime, of course, David Hicks has a much more straightforward appeal -- although al-Bahlul's lawyers are not resting. On August 13, they submitted another appeal, which, in Lyle Denniston's words, "looms as a potentially profound threat to the very existence" of the military commissions at Guantánamo.
This particular challenge involves an argument that the military commissions discriminate against foreign nationals, because, as al-Bahlul's lawyers explain, the legislative history of the Military Commissions Act "leaves no doubt that Congress created criminal procedures that it viewed as unacceptable if applied to U.S. citizens."
The lawyers also noted that convicting al-Bahlul for his role as a propagandist violated his right to free speech under the First Amendment. As they explained in their brief, his trial in 2008 "was not about the terrorist attacks on September 11, 2001. It was not about the inner workings of Al Qaida. It was not about a terrorist mastermind. It was not about planning or perpetration of any terrorist attacks. Instead, in the autumn of 2008, before a nine-member military commission, the government of the United States put a film on trial."
The Justice Department has until September 17 to file its own brief. Al-Bahlul’s reply is to be filed by October 6, and the three-judge panel is scheduled to hear the case on October 22. Watch this space for the outcome.