This month, the president abruptly announced that he is lifting the ban on military tribunals at Guantanamo Bay, extinguishing any hope that he would pursue his own pledge to close the prison camp down for good. Chalk it up to one more broken promise in a city littered with long forgotten aspirations to something, well, bigger than politics.
Through all this disappointment, it’s easy to miss the quieter—but no less significant—revelations that promise not all has been corrupted, yet. Thursday March 17 was one of those days, where, not far from the White House, a small team of military and civilian lawyers who have been toiling away for more than a year in the belly of the beast, gave an elegant brief as to why the U.S. Military Commissions Act (MCA)—the current system under which suspected terrorists are being tried—is antithetical to the rule of law, if not the U.S. Constitution.
In a case that law professor Robert Chesney has called “critical to the future of the military commission system,” the defense team for Ali al-Bahlul, one of only five individuals convicted so far under the tribunal system (out of 775 imprisoned at Gitmo since 2001), argued quite eloquently Thursday before the U.S. Court of Military Commission Review that the charges against al Bahlul—conspiracy, solicitation and material support for terrorism—are a flimflam (my words not theirs), and that his conviction should be overturned.
Think about it: an American team of polished, first-rate attorneys devoting all of their skills and accumulated knowledge of the law to ensure that one Islamist and devotee of Osama bin Laden gets a fare shake. It’s as American as it gets.
Al-Bahlul: Convicted Propagandist
Al-Bahlul’s appeal (.pdf) is the latest test of the government’s ability to effectively prosecute “unlawful enemy combatants” in the Global War on Terror under modern day military tribunals, though the case has been virtually ignored by the major mainstream media. What I will try to do here is explain what went on during Thursday’s hearing and why it is important.
To start, if the day’s arguments were any indication, it appears the defense is better prepared to argue that existing law is on its side. The government’s lawyers, on the other hand, appeared to be at times, grasping at straws. Why else would it reach all the way back to the 19th Century Seminole Wars to prove that a foreigner could effectively be charged with “aiding the enemy,” as claimed in the “material support” charge? But we’ll get back to that shortly.
But first some background. Al Bahlul, now 41 or 42, was denied a request to defend himself during his 2008 trial and subsequently refused counsel provided by the government. He was sentenced to life in prison, the toughest sentence so far among the five Gitmo detainees ever convicted. The team arguing his automatic appeal are volunteers and choose not to speak for al Bahlul publicly out of deference to his continued boycott. They are a devoted union of attorneys who have risked professional rebuke because they see al Bahlul’s conviction bigger than one man. Present on Thursday: Civilian Michael Paradis, a professor at Georgetown Law, who led the arguments Thursday; Army Reservist Major Todd Pierce, and U.S. Navy Capt. Mary R. McCormick.
The Yemeni-born al Bahlul was never a sympathetic character. Before the 9/11 attacks, he worked for Osama bin Laden as a media man, speechwriter and tech guy. He trained in an al Qaeda camp and allegedly bunked with two future 9/11 hijackers. After refusing counsel, he spent his time during the trial acting belligerently, waving around a poem praising the attacks, playing with a paper airplane and vowing to continue the fight. He admits to joining al Qaeda and swearing allegiance to bin Laden.
But for all the unseemly behavior and fealty to the jihadist cause, al Bahlul was never linked to nor convicted of a specific act of violence. His case centered on his role as a propagandist, particularly his speech-writing for bin Laden and the making of a widely distributed documentary, “State of the Ummah,” an amateur video montage of gruesome footage of Israeli violence against Muslims in the Palestinian territories and child-victims of the U.S.-led sanctions against Iraq in the 1990’s, juxtaposed with footage of American military, fat Saudi princes and lengthy calls to jihad by bin Laden himself. Visually, it hits all the right buttons with its intended audience, and can still be found on You Tube.
His defense team and other critics say the charges will not withstand legal scrutiny. Among the key points of the appeal, the defense says none of the charges are war crimes triable by military commission and the charge of material support to terrorism was not an extraterritorial crime in any jurisdiction during the time al-Bahlul was allegedly conducting his crimes, violating the Ex Post Facto clause in the U.S. Constitution (the current Military Commissions Act was passed in 2006 after the Supreme Court ruled that the previous one, authorized by then President Bush after 9/11, was illegal).
Furthermore, the defense argues— albeit controversially—that the charge of solicitation constitutes a violation of free speech protected by the First Amendment. They argue that as a non-citizen held for a decade and tried in American jurisdiction, al Bahlul is protected by the U.S. Constitution, too, and that the charge itself “unconstitutionally conflates offensive behavior with criminal behavior. As offensive as it may be, State of the Ummah is speech that falls within the core protections of the First Amendment, which forbids the prosecution of ‘the thoughts, the beliefs, the ideals of the accused . . . ’”
This, above all, speaks to the broader implications of the case, the “bigger than one man” factor I hinted at before: if al Bahlul is successfully put away on these charges, what is to stop the government from prosecuting any foreigner who produces something the U.S. government does not like? Who is to say it would stop with foreigners—what about homegrown “terrorists” right here in our own backyards?
What They Debated
Though it would have been a treat to hear the judges tackle that question, Thursday’s hearing, which came one year after opening arguments, pursued other challenges posed by the defense, all centering on the question of whether the charges were valid war crimes and whether they violated the Ex Post Facto clause.
Explicitly, the court wanted the attorneys to put al Bahlul’s charges in the context of precedence set by other international war crimes tribunals, particularly the use of the “joint criminal enterprise theory (JCE)” which considers individual members of a group or organization responsible for crimes “on a massive scale” committed by the group or organization.
The defense argues that while JCE has been applied in conspiracy prosecutions, notably, the International Criminal Tribunal for the former Yugoslavia (ICTY) in the late 1990’s, it has never been used as an inchoate or “stand alone charge,” in other words, conspiracy does not rise to the level of war crime in itself, it must be charged in conjunction with charges that an actual war crime has been committed. The prosecution in al Bahlul’s case never alleged that his conspiracies, solicitation or material support resulted in an actual war crime, the defense argued.
“No underlying crime was part of this case,” exclaimed Paradis during the defense’s portion of oral arguments Thursday morning. “There were no alleged war crimes he conspired to commit.”
While the charge of conspiracy is certainly employed as a stand-alone charge in American criminal law, the defense maintains, the bar is understandably set higher for war crimes, considering the magnitude of the charges themselves, including genocide and mass murder. In its own arguments, the government accepts this, but claims that al Bahlul’s “conduct” was enough to sustain the charge of conspiracy set forth in the Military Commissions Act, which the government asserts mirrors the rigorous standards set for JCE in international tribunals.
“(Al Bahlul) joined in, participated in a joint enterprise,” otherwise known as al Qaeda, which was “criminally sanctionable” behavior when he was picked up on the battlefield, charged U.S. Navy Capt. John White, who argued for the government on Thursday.
White also contended no violation of Ex Post Facto, arguing that Congress was not creating criminal offenses out of whole cloth when it revised the Military Commissions Act in 2006, but was merely codifying existing American law that maintained charges of conspiracy, solicitation and material support as viable offenses.
The strangest if not the most telling argument to come out of this latest round in the appeal is the government’s invocation of the Seminole Wars, probably one of America’s darkest periods in military and judicial history. This sprang out of the court asking whether the material support or “aiding the enemy” charge must be limited those “who have betrayed allegiance or duty to a sovereign nation.”
The defense says yes, the charge of aiding the enemy has always been limited to those persons with an implicit loyalty or allegiance to the U.S., i.e. an American citizen or subject thereof, of which al Bahlul clearly is not. The only case that would support the government’s assertion that it is not about allegiance but about “wrongful conduct,” is the arrest, detention and swift execution of two British subjects who were charged with aiding escaped black slaves and Seminole Indians living in Spanish territory in Florida in 1818.
In other words, the defense charges in its own written brief, “the only precedent Appellee can find to support its position is one of the most widely and rightly condemned military trials in U.S. history.”
Englishmen Alexander Arbuthnot and Robert Ambrister had been aiding the Seminole Indians and escaped black slaves with goods and support, including counsel on the continued resistance of the U.S. Army as it made its repeated incursions into Spanish territory. Future president Gen. Andrew Jackson had invaded Florida two years earlier, destroying a fortified safe haven built and left by the British government for escaped slaves called Negro Fort, killing hundreds of men, women and children, all under the guise of squelching a rebellion against the U.S. government. The two British subjects met the surviving ex-slaves and their new friends among the Seminole at Suwanee River. During yet another U.S. incursion deeper into Florida, the two men were captured, tried for “aiding the enemy” and executed.
The episode, considered the tragic precursor of what would become Jackson’s final expulsion of the Indians in the infamous “Trail of Tears,” was criticized by his contemporaries in Washington and roundly condemned by history. Historian Bertram Wyatt-Brown, writing about Jackson in the Journal of the Early Republic, said his actions in the First Seminole War, including the killing of the two British citizens, were “a study in flagrant disobedience, gross inequity and premeditated ruthlessness.”
Why the government today would want to resurrect this stain boggles the mind. One judge on the panel went so far as to quote Col. William Winthrop, a judge advocate general and celebrated military law scholar, who wrote in 1896 that if any officer had ordered an execution in the manner of Jackson, he “would now be indictable for murder.”
“That the United States would reach for such an offensive legal precedent in the present era calls into question the reasoning and judgment of those who are representing the United States in this case,” said the National Congress of American Indians (NCAI), in an Amicus letter dated March 17.
Furthermore, the government compared the Seminole to “modern-day al Qaeda,” which immediately sparked the ire of NCAI and other advocates in Washington.
“The comparison of Native Americans to al Qaeda is disrespectful to American Indian military veterans as well as those in active military service,” the NCAI wrote.
The Center for Constitutional Rights called the comparison “overtly racist,” and said it “cannot present any legitimate legal basis to uphold Mr. Bahlul’s conviction.”
The drama at last week’s hearings was clearly contained, the banter between the counselors and the judges often drifting into the weeds. The hearing was short—about an hour and a half. But it sketched out a broad picture of the case moving forward and the defense looks nimble. Judge Eric Price, a Navy Captain, asked most of the questions and tested the limits of the defense’s arguments, but his rapport with Paradis was lively and only served to underscore the lawyer’s command of the case law as it bolstered their case. On the other hand, Capt. White appeared more defensive on the government’s side, and less prepared.
“It is the government’s burden to show they brought lawful charges and they brought no clarity on that fact,” Paradis said during his 10-minute rebuttal at the end.
Though the odds are clearly against them, a successful appeal would ensure that not only al Bahlul, but any other “unlawful enemy combatant” swept up in the Global War on Terror doesn’t spend the rest of their lives in military prison on sham charges. That there is a core of honorable, dedicated people working quietly within this system toward this end is inspiring news in itself. The success or failure of this appeal can determine whether or not the U.S. government can get away with making up the rules as it goes along, and that affects us all, foreigners and citizens alike.