Abandoning Guantánamo: The Supreme Court’s Shame as a Military Commission Appeal Is Turned Down
A photo of Ali Hamza al-Bahlul from the classified U.S. military files released by WikiLeaks in 2011.
By Andy Worthington, October 12, 2017
On Tuesday (October 10), when the Supreme Court turned down an appeal submitted by Ali Hamza al-Bahlul, a Guantánamo prisoner convicted of terrorism charges in October 2008 in a military commission trial, the justices demonstrated that, for over nine years now, they have proved incapable of fulfilling their role of upholding the law when it comes to issues relating to terrorism.
This is a profound disappointment, because, four months before al-Bahlul’s conviction, on June 12, 2008, those who respect the law — and basic human decency — were thrilled when the Supreme Court delivered a major ruling in favor of the prisoners at Guantánamo. In Boumediene v. Bush, the justices ruled that the prisoners had constitutionally guaranteed habeas corpus rights; in other words, that they could ask an impartial judge to rule on whether or not their imprisonment was justified.
The ruling was the third major ruling by the Supreme Court regarding Guantánamo. In June 2006, in Hamdan v. Rumsfeld, the court had ruled that the military commission trial system at Guantánamo did not have "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." The court also ruled that Common Article 3 of the Geneva Conventions, prohibiting torture and "humiliating and degrading treatment," had been violated.
In June 2004, in Rasul v. Bush, the court had first granted the prisoners habeas corpus rights. This ruling was subsequently undermined by Congress and the executive, leading, eventually, to the court not only reasserting that the prisoners had habeas corpus rights in Boumediene, but also ruling that Congress had erred in seeking to remove them.
Nevertheless, since Boumediene the Supreme Court has done nothing for the men at Guantánamo. In the wake of that ruling, the law finally penetrated Guantánamo, and 38 men had their releases ordered by judges after they ruled that the government had failed to demonstrate that the men in question were connected, in any meaningful sense whatsoever, to either al-Qaeda or the Taliban.
Unfortunately, in 2010-11, judges in the court of appeals (the D.C. Circuit Court) set out to undermine Boumediene, vacating or overturning six of the lower court’s habeas rulings, and eventually gutting habeas corpus of all meaning for the Guantánamo prisoners by ruling that the lower courts had to presume that everything the government submitted as evidence must be regarded as accurate unless it could be proved otherwise.
This was absurd, as so much of the so-called evidence against men held at Guantánamo is thoroughly unreliable, having been produced through the use of torture or other forms of abuse, but when the Supreme Court was repeatedly asked to address this power grab by the D.C. Circuit Court, which effectively nullified Boumediene, the justices repeatedly chose not to.
Five years ago, when a mentally ill prisoner, Adnan Farhan Abdul Latif, took his own life, I pointed out that all three branches of the U.S. government — including the Supreme Court — were to blame. Latif had his habeas corpus petition granted by the District Court in 2010, but that ruling had then been dismissed by the D.C. Circuit Court after President Obama’s Justice Department appealed it, which should never have happened. Latif then appealed to the Supreme Court, like many other Guantánamo prisoners in the years since Boumediene, but, like all of them, he had been ignored, as the court effectively allowed its authority to be usurped by the D.C. Circuit Court.
Given this history, Monday’s failure of the court to take up al-Bahlul’s appeal comes as no surprise, but as law professor Steve Vladeck explained in an op-ed in the New York Times last week, the justices should have taken the case.
As Vladeck pointed out, "Since the establishment of the Guantánamo Bay military commissions over 15 years ago, the dominant legal question has been whether they may try individuals charged with ordinary domestic criminal offenses that are not recognized as international war crimes."
As he proceeded to explain, "Although the United States had occasionally used military commissions to try enemy soldiers before the Sept. 11 attacks, the Supreme Court has upheld the constitutionality of such trials only in areas under military occupation or in cases in which the offenses were international war crimes. Because military occupation presupposes the absence of a functioning, civilian government, military tribunals are the only option. And as for international war crimes, the Supreme Court concluded during World War II that such offenses committed by enemy belligerents fell outside of the Constitution’s jury-trial protections — which otherwise require that all serious crimes be tried in civilian court."
As he also explained, "The principal innovation (and one of the central controversies) of the post-Sept. 11 military trials at Guantánamo has been to extend the reach of military commissions to purely domestic criminal offenses, especially conspiracy and 'providing material support to terrorism.' The government has been unable to tie almost any of the Guantánamo detainees — most of whom were, at most, low-level Qaeda fighters — to specific international war crimes. But rather than simply hold the detainees in military detention or try them in civilian court, the government has used the secrecy-laden criminal proceedings at Guantánamo to push the constitutional envelope."
It has indeed been a rocky road for the commissions, as experts warned when President Obama revived them in 2009, having frozen them when he took office to assess what to do with them. Several serving officials in the Obama administration warned Congress that they expected any material support convictions to be overturned on appeal, and there was no great confidence that the conspiracy charge would also survive. As Steve Vladeck described it, while conspiracy to commit war crimes "is a crime under domestic law, it is not recognized as a war crime by international law. Hence the constitutional question: Does a military commission’s assumption of federal court jurisdiction over domestic crimes violate the Constitution, which reserves the 'trial of all crimes' to the judiciary?"
In the fall of 2012, the fears about misplaced war crimes charges came true, when Salim Hamdan, a former driver for Osama bin Laden, had his material support conviction quashed, and in January 2013 the court also overturned the conviction for material support, conspiracy, and another charge, solicitation, in al-Bahlul’s case.
This was not the end of al-Bahlul’s long legal saga. As I wrote in June, after his appeal had been submitted to the Supreme Court, "In July 2014, on appeal, a full, en banc court confirmed the decision to overturn the conviction for material support and solicitation, but issued a fractured ruling on the conspiracy charge. However, in July 2015, that conviction was overturned, although that decision was then appealed, and in October 2016, the en banc court reinstated it," although, again, in an unclear manner, as I explained in an article entitled, In Contentious Split Decision, Appeals Court Upholds Guantánamo Prisoner Ali Hamza Al-Bahlul’s Conspiracy Conviction.
As Steve Vladeck described it, "The United States Court of Appeals for the District of Columbia upheld Mr. Bahlul’s conviction last year. But Judge Brett Kavanaugh, in a concurring opinion, said the question in play should be decided because 'other cases in the pipeline require a clear answer.'" Vladeck added, "He’s absolutely right. Settling this question would go a long way toward settling the structural legitimacy of the Guantánamo tribunals."
He proceeded to explain that "[e]ach of the eight convictions obtained by the commissions to date has included at least one purely domestic criminal charge, and five turned exclusively on such offenses. And each of the three cases pending at Guantánamo, including the trial of five men accused of being the masterminds of the Sept. 11 attacks, includes charges unsupported by the Supreme Court’s pre-Sept. 11 precedents."
As he also explained, "There are compelling arguments against extending the jurisdiction of military commissions to domestic offences," and he offered three explanations, each of which, unfortunately, the Supreme Court ignored. The three reasons are as follows:
First, as the court recognized during World War II, military tribunals are a narrow and carefully circumscribed exception to the general right of all criminal defendants to a trial by a civilian jury. To expand that exception beyond international war crimes, even for those accused of being part of Al Qaeda, is to open the door to further, novel incursions on that right in the name of national security. As Justice Felix Frankfurter once explained, "The safeguards of liberty have frequently been forged in controversies involving not very nice people."
Second, allowing military tribunals to try domestic offenses creates a serious line-drawing problem, since it is not at all clear what would otherwise limit the jurisdiction of military tribunals — and the government has not identified such a line in the Bahlul case. Especially as transnational terrorism continues to blur longstanding distinctions between the military and civilian spheres, preserving a constitutional stopping point is crucial.
Third, and perhaps most important, the government has demonstrated no compelling need for the Guantánamo tribunals. Civilian courts have been remarkably effective over the past 15 years in trying and convicting terrorism suspects, even amid complaints by some civil liberties groups that judges have been too solicitous of government arguments. Just last Friday, a federal court in Brooklyn convicted an American for his involvement in a 2009 truck bombing of a United States Army base in Afghanistan. He had been captured by Pakistani authorities in 2014 and extradited to the United States. And this week, the trial of a man prosecutors say was the ringleader of the Benghazi attacks began in a civilian federal courtroom in Washington.
Despite the evident success of terrorism trials in federal court, Donald Trump continues to demonstrate a desire not only to keep Guantánamo open, but also, as Steve Vladeck described it, to "reinvigorate the detention operations and military commissions." Given these aims, it is important, as he noted, for the highest court in the land to determine "[w]hether domestic offenses are or are not within the jurisdiction of the Guantánamo tribunals," because this "will have a lot to say about their utility as a policy option for future detainees — along with the legitimacy of the entire military commission enterprise thus far."
As Vladeck also noted, the government "urged the Supreme Court to turn down the Bahlul case, arguing that the lower courts have not been divided on the major constitutional question it presents, and that, in any event, there are difficulties specific to the case that would preclude the justices from deciding the issue." As he pointed out, however, the D.C. Circuit Court’s decision actually "stands in marked contrast to both claims: First, seven of the nine judges who ruled on Mr. Bahlul’s last appeal thought that it was the right case to decide the constitutional question, and then they reached a decision, dividing 4-3 in favor of the government."
Vladeck concluded his op-ed by stating that, "If the justices are interested in settling, once and for all, the central question that has surrounded the post-Sept. 11 military commissions, they should agree to hear the case."
It is now clear that they are not interested in settling that question, and that, it seems to us at "Close Guantánamo," is an abdication of their responsibilities, one that will continue to ensure that the much-criticized commissions continue to limp on with unresolved confusion at their core, as well as continuing to deny justice to Ali Hamza al-Bahlul, who has been separated from the rest of the prison’s population since November 2008, even when, for 18 months in 2013-14, his conviction had been overturned.
Every indication we have is that al-Bahlul, who refused to even mount a defense at his trial in 2008, has no interest in the twists and turns of his case, but for anyone who has a lingering belief in the concept of justice in the U.S., it is hard to see how the Supreme Court’s ruling this week does anything to indicate that the post-9/11 excesses of the Bush administration are being taken seriously, nearly 16 long and depressing years since Guantánamo first opened.
