His videos didn’t spark a riot in Benghazi.
Via McClatchy
A divided appeals court on Friday struck down the conspiracy conviction of a top-level Guantanamo Bay detainee in another blow to the controversial U.S. military commission system.
The U.S. Court of Appeals for the District of Columbia Circuit ruled in its 2-1 decision that conspiracy was not a war crime for which Ali Hamza Ahmad Suliman al Bahlul could be tried by a military commission.
“The history on which the government relies fails to establish a settled practice of trying non-international offenses in law of war military commissions,” Judge Judith W. Rogers noted.
Rogers, who was appointed by President Bill Clinton, joined Judge David S. Tatel, also a Clinton appointee, in ruling that the reach of “military commissions does not extend to the trial of domestic crimes in general, or inchoate conspiracy in particular.”
Last year, for other reasons, the full D.C. Circuit court invalidated Bahlul’s military commission convictions on two other charges.
“This is something I’ve been saying for many years, that they should remove the non-war crimes from the military commissions,” Air Force Reserves Lt. Col. David Frakt, who served as Bahlul’s trial attorney, said in an interview Friday.
Frakt, who noted that Bahlul boycotted the military commission trial as a protest, added that the ruling Friday “continues the trend or pattern of shrinking the potential pool of defendants” subject to the commissions.
The Obama administration now faces the tricky tactical decision of whether to appeal the three-judge panel’s decision to the full 11-member D.C. Circuit, which is now dominated by Democratic appointees, or to go straight to the conservative-dominated Supreme Court, or to take another tack altogether.
“It’s time to stop trying to force these cases into a costly, unnecessary and unreliable offshore military commission system, when we have a reliable and respected federal justice system here at home,” said Daphne Eviatar, senior counsel for Human Rights First.
But Judge Karen LeCraft Henderson, appointed to the bench by President George H.W. Bush, warned that the appellate court’s “timing could not be worse” because of global terrorism dangers, while she likened Bahlul to Nazi Germany’s infamous propaganda minister Joseph Goebbels.
“Conspiracy to commit war crimes is not a purely ‘domestic’ offense, but instead is in accord with the international community’s agreement that those who conspire to commit war crimes can be punished as war criminals,” Henderson wrote in a dissent that was more than twice as long as the majority opinion.
Army Lt. Col. Myles Caggins, Defense Department spokesman for military commissions, said in an e-mail that “the Defense Department is studying the judges’ ruling and exploring all legal options.”