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Expost Facto

Ali Hamza (et al) Bahlul v. United States

2014 U.S. App. LEXIS 13287


Ali Hamza Ahmad Suliman al Bahlul

Bahlul, a native of Yemen, went to Afghanistan and became a personal assistant to Ben Laden. In this capacity Bahlul produced a video glorifying those responsible for putting a large hole in the hull of the U.S. Navy destroyer, Cole; he "arranged the loyalty oaths of two of the 9/11 hijackers;" he prepared "their maryter wills;" he traveled with Bin Laden from his Kandahar headquarters to a remote region of Afganistan in the days before 9/11; he went to Pakistan to flee the U.S. invasion, and was captured there, in 2001. Turned over to U.S. authorities, he was placed in the Gito military prison where he remains today.


In 2008, the U.S. military charged Bahlul with three offenses: conspiracy to commit war crimes; providing material support for terrorism; and solicitation of others to commit war crimes. Under the rubric of "conspiracy" and "solicitation" the military claimed Bahlul had "unlawfully" participated in "attacking civilians, attacking civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, terrorism, and providing material support for terrorism.

File:Ali Hamza Al Bahlu'sl boycott sign.jpg


Bahlul waived all pretrial motions, asked no questions during voir dire, made no objections to the military's evidence, presented no defense, and declined to make an opening or closing statement.

The military convicted Bahlul of the three offenses, based on its findings that Bahlul had committed each of the acts enumerated above.

Query: How is carpet bombing German cities not a "war crime?" How is dropping an atom bomb on Japanese cities not a "war crime?" How is dropping tons of bombs on Vietnamese villages not a "war crime?" But dropping a bomb on New York City is?


While Bahlul's appeal from his conviction was pending, the Court of Appeals ruled, in Hamdan v. U.S. that the congressional act under which Bahlul was convicted "does not authorize retroactive prosecution for conduct committed before its enactment, unless the conduct was already prohibited under U.S. law as a war crime triable by military commission." Since "providing material support for terrorism" was not a preexisting war crime triable by military commission, Hamdan's conviction was vacated. In Bahlul's appeal, a three judge panel of the court vacated Bahlul's conviction on all three of the military's charges and the military has appealed to the full court for a rehearing of the vacation.

The court, sitting in banc, ruled that the standard of review of the panel's decision is what is called "plain error review" rather than de novo review. This resulted in the court's conclusion that, because Bahlul had refused to participate in his trial, he has "forfeited the arguments he now raises."

At the trial, Bahlul had stated his position thus:

"He disclaimed guilt and contended that `what he did was not a crime' because his actions were inspired by religious fervor. He explained that that he `believes that no one has the right to set laws for the people, the right of legislating laws is absolutely to Allah, the All Mighty."


The court, en banc, tells us it rejected Bahlul's ex post facto claim, because he did not clearly alert the military commission that he was complaining the military charges were based on a law concocted after he had alleged committed the offense he is now charged with. The Court acknowledges that Bahlul had, in fact, asked (in his igorance) whether "the law here by you stems from action, that is, before action, or post action." Apparently, the military commission judge claims he was too dumb to grasp what Bahlul was complaining about and the court allowed it.

What Did The Court, en banc, Rule?

I           It Interprets the congressional act under which Bahlul was convicted.

"[In] Hamdan we held that the 2006 [congressional act] `does not authorize retroactive prosecution for conduct committed before enactment of tha act unless the conduct was already prohibited under existing U.S. law as a war crime triable by military commission.' We now overrule ourselves and hold the opposite: The 2006 law is unambiguous in its intent (if not its words) to authorized the retroactive prosecution for the crimes enumerated in the statute—regardless of their preexisting law-of-war status."


II         A ping pong match between the courts and congress.


In 2006, Congress amended its "Let's punish terrorism" law because, in Hamdan, the Supreme Court had ruled that "conspiracy" to commit terrorism was not an offense triable under the then existing law. So, in 2006, congress amended to law to make conspiracy such a crime, regardless of when the offense was committed. This change in law was challenged by another "detainee" and the Supreme Court, this time, turned its back on itself, this way:

"If the Court [rules one way], Congress can make an informed legislative choice either to amend the statute or retain its existing text. If Congress amends, its intent must be respected even if a difficult constitutional question is presented. (Oh, really?Yes, really.)


The usual presumption is that members of congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one, and the Judiciary (read "Supreme Court"), in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in the proper case."


III        Which Brings Us to Bahlul's Ex Post Facto Challenge.

The Constitution reads:

"No bill of attainer or ex post facto law shall be passed."


An "ex post facto law" is any law that makes an action, done before the passing of the law, and which was innocent when done, criminal. The concept includes any law that aggravates a crime, or makes it greater than it was, when committed.

As to the charge of "conspiracy" the Court rules that no constitutional problem exists, because section 2332(b), enacted many years before 9/11 specifies that it is a crime to, "outside the United States," engage in a conspiracy to kill a national of the United States." The fact that the congressional act of 2006 allowed for the trial of this offense to occur in the forum of a "military commission" and not a trial court of the United States the Court considered irrelevant to the resolution of the constitutional issue.

Note: Bahlul's actions do not objectively appear to have contributed materially to the killing of anyone. Making a video celebrating the hole in the Cole, making an appointment for Atta to pledge allegiance to Ben Laden, or to make a will to Allah, hardly seem material to Atta's act of hijacking an airliner and hurling it into the World Trade Center towers. Now, if Bahlul handed Atta a box cutter, or helped in some material way to trainAtta  in the use of it. . . . Well then.


Though there were several sub sets of theoretical issues debated by the Court, en banc, the most interesting one is the question whether conspiracy to commit war crimes is an offense, under the "law of war", falls within the jurisdication of a military commission.

The jurisdictional statute, under which Bahlul was tried, section 821, grants military commissions jurisdiction "with respect to offenses that by the law of war may be tried by military commission." Whether the law of war as codified by the law of nations recognizes "conspiracy" to commit war crimes—as opposed to the actual commission of a war crime—was debated hotly by the members of the Supreme Court, in Hamdan. Four justices opined in that case that "conspiracy" is not triable by military commission under section 821; while three justices opined that it was. One justice having recused herself, the issue was left unresolved.

In Bahlul, the Government admitted that the law of nations does not recognize "conspiracy" as punishable by military commission, but then argued so what: the law of war as privately interpreted by the United States (i.e.., "the common law of war as developed in U.S. military tribunals"); and that is all that counts. The Bablul court, en banc, happily accepted the non-resolution of the issue as sufficient excuse to ignore Bablul's procedural argument regarding the military commission's non-jurisdiction, taking the position that, though the material support and solictation charges are clearly ex post facto offenses, under the law of war as interpreted by U.S. military tribunals, "conspiracy" is not.

Note: In July 2003, President Bush, as Commander-in-chief, initiated Bahlul's journey through the congressional scanctioned military justice system, by writing:

"I, George Bush, hereby determine for the United States of America that in relation to Bahlul there is reason to believe that he has engaged in, or aided and abetted, in acts of international terrorism. . . According Bahlul is subject [to trial by military commission"


What follows is the transcript of a hearing in which Bahlul's designated attorneys challenged the standing of the "presiding Officer" to preside.

Ali Hamza al-Bahlul (far left) during his Military Commission hearing in May 2008

What Happened At "Trial?"

Noting that he was obliged to respect his client’s wishes, Maj. Frakt, Bahlul's designated defense attorney, asked to be relieved, and when the judge, Air Force Col. Ronald Gregory, refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory.

In response, Col. Gregory attempted to argue that Maj. Frakt was “obliged to participate,” as the Associated Press described it, and insisted, “The commission will not proceed with an empty defense table.” However, he then appeared to concede that it was not in his power to force Maj. Frakt to represent al-Bahlul, and determined to proceed with a trial based solely on evidence provided by the prosecution, even though this will do nothing to convince any objective observer that justice will be seen to be done.

What’s particularly bizarre about this empty trial is that the government should have known that this was what would happen. Ever since al-Bahlul was first put forward for trial by Military Commission, he has tried to represent himself, and has boycotted the proceedings when prevented from doing so. Back in 2005, this prompted a crisis for his military-appointed lawyer, Army Maj. Tom Fleener, who was obliged to represent him under the Commissions’ rules at the time.

As Maj. Fleener explains: “The concept of compelled representation has always bothered the crap out of me. You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.” The reason it’s never done is that it undermines the concept of a fair trial. When a man’s life or liberty is at stake, he gets to decide who will speak for him. That’s the way American courts work, have always worked. To eliminate that right is to begin to transform a trial into a pageant.

Maj. Fleener goes on to say, “I hated the fact that we were making up a trial system to convict people after we’d already decided they’re guilty. I hated that as a country we were doing that. I didn’t like the fact that we were violating the rule of law, and that what we were doing as a country was just … wrong.”

They want to have these bizarre trials, they don’t want to let the defendant see secret evidence — so the one thing they need is lawyers. The government wanted this attorney-client thing to work. They really did. It’s an important part of the show.

At  the commission hearing, Judge, Army Col. Peter E. Brownback III, motioned for  Bahlul's counsel to move up the table to represent him. The following exchange then took place:

Counsel:          Sir, is this an order? Should I consider it an order?
Brownback:     Do you need an order?
Counsel:          I believe I do, sir.

The problem is that it is a violation of the State Bar rules of professional conduct, to which every lawyer must belong, to represent a person who does not want the representation. An military order to represent a person under such circumstance means the lawyer can be disbarred. But, perhaps, the courts, in their zeal to paper over the holes in the Government's constitutional conduct, here, will produce an exception in the case of representation of "terrorists." How much simpler, and more proper, it would be, to try the alleged criminal in an American trial court.

Al Bahlul v. United States Revisited

U.S. Court of Appeals for District of Columbia

Decided June 12, 2015 

Majority en banc reverses its prior ruling:

This time Al Bahlul’s lawyers, smart fellows that they are, petitioned the Court for Review of the military commission’s finding Al Bahlul was guilty of  “conspiracy,” on the ground that, though Al Bahlul’s trial conduct “waived” or “forfeited” his procedural objections to the commission, he could not waive or forfeit his “structural” objection that Congress, in enacting the law upon which the commission’s jurisdiction is based, usurped the judicial power of the United States which the Constitution invests exclusively in the Supreme Court.

Article III, sec. 1 of the Constitution mandates that the “judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish.” Sec. 2 provides that “the judicial power shall extend to. . . all cases in law and equity arising under this Constitution, the laws of the United States and treaties.” These cases include criminal prosecutions. (Ex Parte Milligan 7 US 2, 121 (1866).)

In a long line of precedent the Supreme Court has consistently held that Article III is an inseparable element of the constitutional system of checks and balances that both defines the power and protects the independence of the Judicial Branch. In the context relevant here, Congress can bypass the courts and try a person in a “military commission” for an offense against the law of war as defined by the law of nations. (Ex Parte Quirin 317 U.S. 1 (1942).) Under Article I of the Constitution, Congress may “define and punish offenses against the Law of Nations, of which the law of war is a part” (Art.I, sec.8, cl 10.), but Congress cannot, pursuant to the clause, declare an offense to be an international war crime when the international law of war does not. Here, the Government concedes that “conspiracy” is not recognized by the Law of Nations to be a war crime, but it argues that Congress has the constitutional power to create new war crimes. This contention the Court of Appeals, relying on a strong line of Supreme Court precedent, rejects.

Were the Government correct in its contention, Congress would have virtually unlimited authority to bring any crime within the jurisdiction of military commissions─even theft and murder─as long as it related in some way to an ongoing war or the armed forces. Congress could simply declare any crime to be a violation of the law of war and then vest military commissions with jurisdiction to try it, eliminating in the process any review of the proceedings by the Judicial Branch. Very sad to say one of the Court’s judges, Karen LeCraft Hendrson would have it exactly this way.

“My colleagues contend─as a matter of constitutional law, not simply comity─that the Congress cannot authorize military commission trials unless the international community agrees, jot and tittle, that the offense in question violates the law of war. And the content of international law is to be determined by─who else?─the Judiciary, with little or no deference to the political branches. . .


The immediate consequences of today’s decision are serious enough; my colleagues bar the Government from employing military commissions to try individuals who conspire to commit war crimes against the United States. But the consequences moving forward may prove more alarming still. My colleagues’ opinion means that, in future conflicts, the Government cannot use military commissions to try enemy combatants for any law-of-war offense the international community has not element-by-element condoned. And the beneficiary of today’s decision could not be less deserving. Al Bahlul is an alien unlawful enemy combatant who─like Hitler’s Goebbels─led Osama bin Laden’s propaganda operation.”


All of us can reasonably say we could care less what happens to Al Bahlul, but all of us certainly should care much what happens to us, when the Federal Government decides the “war on terror” justifies it establishing military commissions to try us for concocted “offenses” it deems to be a “war crime; thereby shutting us off from the procedural and substantive protections afforded, under our constitution, by the Judicial Branch. Orwellian indeed.

Joe Ryan