Wednesday, March 16, 2011

Military Commission Appeal Tomorrow- UPDATED

The audio of the Bahlul argument is here:   Bahlul's reply brief is here:   The US brief is here:   Bahlul opening brief, preceded by CMCR order specifying issues, is here:  

The Search for Crimes to Support Conviction at Guantánamo....

Al Bahlul is the first appeal of a Guantánamo military commission conviction to proceed
before the Court of Military Commission Review. It is notable because it involves a
conviction and life sentence in search of supporting war crimes offenses.
Mr. Bahlul has been imprisoned at Guantánamo for nearly a decade. After two
presidential administrations, one Supreme Court decision, two acts of Congress, three
sets of charges, a trial that concluded more than two years ago, appellate proceedings that
began more than a year ago, a reshuffling of the Court of Military Commission Review
and a decision to hear the appeal en banc, the government has all but conceded that the
offenses for which Mr. Bahlul was originally convicted before a military commission –
conspiracy, solicitation and providing material support for terrorism – were not
established law-of-war offenses under U.S. or international law at the time they were
allegedly committed.
The court appears to recognize this as well, because on January 25, 2011, it issued
certified questions on its own and ordered the parties to address whether Mr. Bahlul’s
conviction can nonetheless be supported under a “joint criminal enterprise” theory of
liability, or on the grounds that he “aided the enemy,” despite the fact that he owed no
duty or allegiance to the United States. These questions are the subject of tomorrow’s
The court’s action is highly irregular because the government expressly withdrew
reliance on a “joint criminal enterprise” theory of liability and never argued a charge of
“aiding the enemy” at Mr. Bahlul’s commission trial. Common sense also dictates that
attempting to justify a life sentence for an alleged “enemy” who owes no duty or
allegiance to the United States because he “aided the enemy” is illegal bootstrapping.
Military commission judges, no less than other military officers, are sworn to uphold and
defend the Constitution, not to devise creative legal theories never argued by the parties
at trial in order to uphold law-of-war convictions. Although the government may have
badly botched the prosecution of Mr. Bahlul, the court should reject the invitation in the
government’s response to the certified questions to search out some legal theory – any
legal theory – to support his conviction. Nothing less is demanded of a regularly
constituted court.
The court should also reject the government’s notable reliance on the “Seminole Wars”
of the 1800s, a genocide that led to the Trail of Tears. The government’s characterization
of Native American resistance to the United States as “much like modern-day al Qaeda”
is not only factually wrong but overtly racist and cannot present any legitimate legal basis
to uphold Mr. Bahlul’s conviction.
Sadly, however, the removal and attempted eradication of Native Americans is not unlike
the treatment of detainees at Guantánamo in that each stands alongside slavery and Jim
Crow, the targeting of immigrants, and the internment of Japanese Americans, among
other examples, as a stark reminder of how in times of fear and xenophobia our nation
has brutalized and demonized human beings as “others” who are unworthy of the rights
most Americans take for granted in order to deny them equal protection of the law.
Guantánamo was designed to be a prison where no laws applied. Today, it remains a
prison reserved exclusively for Arab and Muslim men, many of whom the president
recently announced would be subjected to military commissions, an ad hoc system
intended to manufacture convictions unattainable in federal court. This secondary system
of justice should be abandoned. Mr. Al Bahlul’s conviction should be overturned, and the
prison, which administration officials continue to recognize threatens and demeans the
United States, must be closed now.