WASHINGTON — A federal appeals court on Thursday upheld the conviction of Osama bin Laden’s former personal assistant, but the ruling did little to settle a simmering dispute over the limits of prosecuting terror suspects before military tribunals.
The 6-3 ruling from the U.S. Court of Appeals for the District of Columbia Circuit found that a military commission was authorized to convict Ali Hamza al-Bahlul of conspiracy charges. But a majority of judges could not agree on the reasons for the outcome.
At issue is whether the Constitution allows Congress to make conspiracy to commit war crimes an offense triable by military tribunal, even though conspiracy is not an international war crime.
A divided three-judge panel of the same court threw out the conviction of the Guantanamo detainee last year, saying the tribunals created after the Sept. 11 terrorist attacks had no power over domestic crimes, such as conspiracy. But that decision was set aside after the Obama administration asked the full appeals court to reconsider the case.
The previous ruling could have limited the government’s ability to try terror suspects outside the civilian justice system.
In the latest decision, four judges said Congress can give military tribunals authority over conspiracy charges. Judge Brett Kavanaugh, writing for the four, said foreign nations, through international law or otherwise, cannot have “a de facto veto power” over Congress’ determination of what crimes a military tribunal may consider. Kavanaugh also cited historical precedent going back more than 150 years.
Two other judges voted to uphold the conviction, but did so for different reasons.
In dissent, Judges Judith Rogers, David Tatel and Patricia Millett said the prosecution of conspiracy charges “exceeded the scope” of what is allowed for military tribunals under the Constitution.
They warned that under the government’s view, Congress could do an “end run” around civilian courts and authorize military commissions to prosecute U.S. citizens “solely because they had some connection to the ‘war’ on terrorism.” While the government can detain Bahlul as an enemy combatant, they said, “it does not have the power to switch the Constitution on and off at will.”