Supreme Court to get one, maybe two, big cases on war crimes

A war crimes case of a kind that the Supreme Court has not seen in a decade is due to reach the Justices on November 1, and may soon be followed by a second. One or both cases could pose significant challenges to the troubled system of war crimes courts run by the U.S. military at Guantanamo Bay, Cuba.

While the number of detained foreign nationals at the Guantanamo prison has dwindled to just 60, the military commissions set up under a 2006 federal law continue to grind along at a slow and frequently interrupted pace. The two cases that now seem destined to reach the Court could raise very fundamental issues about the powers of those tribunals.

In a filing early this month in the federal appeals court in Washington, D.C., the defense lawyers for a well-known detainee said they plan to file a petition at the Supreme Court a week from Tuesday, to challenge the authority of a military commission to go ahead with his trial. He is a Saudi Arabian national, Abd Al-Rahim Hussein Mohammed Al-Nashiri, who is charged with nine crimes, including plotting the bombing of a U.S. warship, the U.S.S. Cole, in a harbor in Yemen in 2000. He faces a possible death sentence. (Government officials have conceded that Al-Nashiri was subjected to severe torture while a captive.)

His case raises the basic question of when America’s “war on terror” actually began. Because the crimes charged against Al-Nashiri occurred before the terrorist attacks directly against the United States on September 11, 2001, his lawyers contend that a military commission set up under a 2006 law has no authority to try him. The government concedes that such commissions can only try crimes that occurred during “hostilities,” but it has argued in his case that hostilities related to the “war on terrorism” probably began at least in 1998 and maybe as early as 1992.

The U.S. Court of Appeals for the District of Columbia Circuit, in a ruling on August 30, found that when “hostilities” began for purposes of the war crimes cases is an “open question.” However, in a split decision, that court ruled that Al-Nashiri had no right to pursue his challenge in civilian courts until after his case is completed within the military commission system — including an appeal, if he is convicted, in a special military appeals court. He will have ample opportunity to raise all of his legal claims, the majority said.

The same defense lawyers who will be filing Al-Nashiri’s appeal to the Supreme Court are also pondering whether to do the same with another detainee client’s case, just decided by the D.C. Circuit Court on Thursday — the long-running case against a Yemeni national who has been convicted on charges related to his alleged role as a propagandist for the Al Qaeda global terrorist network, and its leader, the late Osama bin Laden. He is Ali Hamza Suliman al Bahlul.

Although facing a life-prison term after being convicted of several terrorism-related crimes, his only conviction that has now been upheld was for a criminal conspiracy. In its deeply-divided ruling on Thursday, the Circuit Court upheld that verdict, but there was no clear majority in support of the federal government’s broadest claims about the kinds of crimes that military commissions may try.

If the case is appealed to the Supreme Court, Bahlul’s lawyers would likely be arguing that Congress had no power to give a war crimes commission the authority to try any crime unless that crime is recognized under international law. The specific charge against Bahlul was that of an “inchoate conspiracy” — that is, an agreement to commit a crime, but without any crime actually resulting from the plot. Even the government has conceded that such a bare claim of conspiracy is not recognized in international law. But the government has contended that that does not matter.

The broadest part of an appeal to the Supreme Court on Bahlul’s behalf would be that a mere charge of conspiracy to commit a war crime can only be tried in a civilian court, set up under the Constitution’s Article III.

In Thursday’s ruling, four of the judges of the D.C. Circuit Court ruled as the government had asked, that Congress is not limited in any way by international law as to what crimes it can assign to military, not civilian, courts. However, a majority of the nine judges taking part in the ruling (two of the Circuit Court’s eleven judges did not take part) did not agree with that declaration. Two judges said the court did not need to reach that issue, because they found that Bahlul’s conviction could be upheld under a different theory of crime than the one for which he was actually charged and convicted, and three other judges dissented from the overall ruling against Bahlul. The dissenters said the case raises a profound question of Congress’s powers to bypass the civilian courts in allowing crimes to be prosecuted by military commissions.

Because the ruling last Thursday was made by the en banc D.C. Circuit Court, the next step for Bahlul’s lawyers would be an appeal to the Supreme Court.

It would take the votes of at least four of the current eight Justices to hear either of these cases. Lacking one Justices, the Court has been reluctant to take on significant new controversy that potentially could lead to 4-to-4 splits, a kind of ruling that sets no precedent and settles only an individual case.

At this point, the Court has no idea when, or if, a ninth Justice will be approved any time within coming weeks or months.

The Justices’ last major ruling on Guantanamo detainees came eight years ago, in the case of Boumediene v. Bush. In that decision, the Court gave Guantanamo detainees a legal right to pursue challenges, in civilian court, to their continued captivity.

The Court’s last ruling on the powers of military commissions came ten years ago, in the case of Hamdan v. Rumsfeld. In that decision, the Court struck down the military commission system set up by order of President George W. Bush after the 9/11 terrorist attacks. In response to that ruling, Congress passed the Military Commissions Act of 2006.

It is under that Act, along with some amendments made to it by Congress in 2009, that war crimes cases are being carried out at Guanantamo Bay. There have been few convictions, and most guilty verdicts that were reached have been overturned on appeal. Now, Bahlul’s conviction has been upheld in perhaps the highest-profile conviction before a commission. Al-Nashiri, of course, has not yet gone to trial.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. This article first appeared on lyldenlawnews.com.