Military Commissions: Deferring the Inevitable at Guantanamo

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Justice pretty much does not exist at the Guantánamo Bay prison camp. Legal issues related to the prisoners can thus go unnoticed or otherwise be obfuscated in convoluted legal jargon and arguments.

The judgment handed down on July 14, 2014, by the US Court of Appeals DC District in its long-awaited ruling in the case of Ali Bahlul was no exception. Somewhere in this confusing 150-page judgment, which raises more questions than it answers, resides one of the most important pieces of news to come out of Guantánamo Bay in a long time. In a 4-3 en banc decision, judges at the court ruled to vacate his convictions for providing material support for terrorism and soliciting murder but upheld his ex post facto conspiracy conviction and “remand[ed] that conviction to the original [three-judge] panel of this Court for it to dispose of several remaining issues.”

The heart of the matter, the question of conspiracy as an international war crime, remains unresolved. The ruling in the case was always going to be political with huge ramifications for other prisoners facing trial by military commission and former prisoners appealing their convictions, such as David Hicks and Omar Khadr.

Ali Bahlul was convicted in 2008 and is the only Guantánamo prisoner to be handed a life sentence. Following the principles applied in the successful 2012 appeal vacating the conviction of Bin Laden’s Yemeni driver Salim Hamdan, Bahlul appealed and had all three of his convictions vacated in January 2013. No reasons were given in the one-page judgment.

In April 2013, the Obama administration was granted a rehearing of the case, to also take in the judgment in Hamdan. While the administration concedes that the vacated convictions were not recognized under the “international” laws of war prior to 2006, when the Military Commissions Act of 2006 came into force, they were recognized under “the US common law of war.” It is on this basis that the court vacated the two convictions – for lack of historical evidence – whereas it deemed this existed in a US domestic context for the conviction of conspiracy. Nonetheless, additional arguments on conspiracy will return to the original three-judge panel at the same court, and then, “The entire case will be returned to the Court of Military Commission Review, for evaluation of the effect, if any, of the vacaturs upon al-Bahlul’s life sentence.”

The ramifications of the original 2013 Bahlul ruling and its vacation of the conspiracy conviction were felt immediately when a week later, the chief prosecutor in the case of five men accused of involvement in the 9/11 attacks asked for the conspiracy charge to be dismissed against them. Almost all of the eight convictions at Guantánamo and outstanding cases involve the charge of conspiracy.

One positive upshot of the ruling is that former Australian prisoner David Hicks, whose appeal was put on hold awaiting this judgment, looks to have his 2007 conviction on the sole charge of “material support for terrorism”vacated. One of the first prisoners to be taken to Guantánamo in 2002, he was convicted in 2007 under a plea bargain that required him to plead an Alford plea (plead guilty without admitting the charges) and serve seven months in Australia; it was effectively his only way out.

Another prisoner who remains incarcerated in Canada, where he is serving the remainder of his sentence, Omar Khadr, did not apparently fare as well under this ruling: His conspiracy conviction remains. In both cases, torture evidence was used and in Khadr’s case, the United States set the much-criticized precedent of trying him as an adult for offenses allegedly committed as a minor, the only such case since World War II. Khadr was 15 at the time he is alleged to have killed a US Special Forces soldier.

While Bahlul’s lawyers now have the option of appealing to the Supreme Court or arguing against the reinstatement of the conspiracy conviction before the original panel, a process that could take years, Khadr and Hicks may have to continue their wait. It is also not clear how the decision on conspiracy might relate to other prisoners. The court broadly skirted the more serious issues put to it, perhaps to defer judgment to a higher court. Charlie Savage states “the court sidestepped many of the larger questions, ensuring that legal uncertainty would remain for at least another year over the charge of conspiracy in the war crimes tribunals.”

According to Steve Vladeck, the decision “creates a huge headache with respect to conspiracy,” and is “an important prosecutorial tool in the war on terror, where it can often be difficult for the government to procure evidence directly connecting leaders of militant groups with specific terror attacks.”

Commenting on the judgment, the Center for Constitutional Rights, which represents David Hicks, stated: “The court merely deferred the inevitable by failing to recognize that conspiracy is no more appropriately tried in a military commission than material support. We urge the Supreme Court to review today’s ruling regarding conspiracy and dispense with all fabricated war crimes charges once and for all.”

More crucially perhaps is the fact that this ruling is “the first appellate court decision to uphold a military commission conviction on direct appeal.” Jack Goldsmith argues that unlike in the Hamdan case, the court here is not questioning “the basic legitimacy of commissions, but rather is assuming their legitimacy (in fact and in tone) and is working out the invariably messy details of their proper scope,” with the ruling appearing “to be a step in the direction of judicial acceptance of the basic legitimacy of commissions.”

In many ways, it is simply the administration playing for time with an irreparable system: Military commissions and their convictions remain highly dubious. Justice may just be a matter of time, but a considerable amount of time has already been wasted – years in some cases and in jail – by an administration that should just concede that the game is up.