A federal appeals court on Thursday upheld the conviction of Ali Hamza Ahmad al Bahlul, a filmmaker and public relations assistant found to have actively helped Osama bin Laden and al Qaeda prepare for the Sept. 11, 2001 terror attacks.
In a divided 163-page ruling, the full U.S. Court of Appeals for the D.C. Circuit rejected Bahlul’s constitutional challenge to his conviction for conspiracy under the laws of war, reasoning that Congress has authority to make the crime of conspiracy a punishable offense that can be tried in an American war tribunal.
“An enemy of the United States who engages in a conspiracy to commit war crimes ― in Bahlul’s case, by plotting with Osama bin Laden to murder thousands of American civilians ― may be tried by a U.S. military commission for conspiracy to commit war crimes,” the court said in its main conclusion.
The case arrived at the court as an appeal of a decision by a Guantanamo military commission, which found Bahlul guilty of conspiracy to commit war crimes ― including murdering civilians and providing material support for terrorism.
Bahlul, who is from Yemen, rose to prominence in al Qaeda’s ranks after he produced a propaganda video that hailed a 2000 bombing that killed 17 American sailors and was used for recruitment purposes. Bin Laden then hired Bahlul as his personal aide and media relations representative. He was so central to the al Qaeda leader’s planning and interests that bin Laden declined his request to volunteer for the 9/11 attacks.
Following the terror act, Bahlul fled from Afghanistan to Pakistan, where he was captured and turned over to U.S. forces. A military commission in Guantanamo later tried and convicted him of conspiracy to commit various war crimes, including preparing “martyr wills” for two of the 9/11 hijackers ― video declarations in which the terrorists describe what they’re about to do.
“When I look at what Bahlul was really convicted of, I see a war crime,” said U.S. Circuit Judge Robert Wilkins in a concurrence ― one of six separate opinions in the long-running case.
The nine judges who deliberated in the ruling couldn’t agree on a single rationale for deciding Bahlul’s constitutional contentions, which more or less centered on the constitutional authority of Congress to give military commissions ― rather than courts ― oversight over wartime trials for the specific crime of conspiracy.
“When I look at what Bahlul was really convicted of, I see a war crime.”
- U.S. Circuit Judge Robert Wilkins
In the end, six judges voted that Bahlul’s conviction should stand, while three judges would’ve reversed it on the grounds that the military commission here went beyond its power.
Notably, U.S. Chief Circuit Judge Merrick Garland, whom President Barack Obama nominated to fill a vacancy on the Supreme Court in March, sat for oral arguments in the case last year but did not participate in the ruling. He has stepped aside from all decision-making while his nomination is pending.
The three dissenting judges argued passionately that the Bahlul conviction has less to do with his crimes or his connections to al Qaeda than with giving too much power to the federal government ― while taking away that of the federal judiciary.
“The challenges of the war on terror do not necessitate truncating the judicial power to make room for a new constitutional order,” the judges wrote in a joint dissent. They would’ve squashed Bahlul’s conviction because, in their view, it went beyond the military commission’s power to render it.
And in a nod to the Supreme Court, which may end up reviewing the case, they warned that Thursday’s ruling will have no binding effect.
“Today’s decision thus provides no precedential value for the government’s efforts to divert the trial of conspiracy or any other purely domestic crime to law-of-war military commissions,” they wrote.
This story has been updated with additional information about Bahlul and the appeals court ruling.