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En Banc Review for Conspiracy, Material Support Convictions

By Robyn Hagan Cain on April 24, 2013 | Last updated on March 21, 2019

Remember when the D.C. Circuit overturned Osama bin Laden’s driver’s conviction for material support of terrorism last October? It seems that wasn’t the appellate court’s final word on the issue.

Tuesday, the D.C. Circuit agreed to reconsider its take on Military Commissions Act convictions en banc in Ali Hamza Ahmad al Bahlul v. USA, a case involving Osama bin Laden’s personal and media director.

Tuesday's order stems from a January panel ruling that the military tribunal that convicted Ali Hamza Ahmad Al Bahlul of conspiracy in 2007 erred because a Guantanamo prisoner could not be convicted of conspiracy unless his crime took place after 2006, Jurist's Paper Chase reports. The government appealed that decision.

In addition to the issues that the petitioners raised, the appellate court ordered the parties to brief on two more questions:

  1. For purposes of considering whether the Military Commissioners Act of 2006 may permissibly proscribe pre-2006 conduct that was not a war crime triable by military commission under 10 U.S.C. §821 before 2006, does the Ex Post Facto Clause apply in cases involving detainees at Guantanamo?
  2. Assuming arguendo, as Hamdan II concluded, the Military Commissions Act of 2006 does not proscribe pre-2006 conduct that was not a war crime triable by military commission under 10 U.S.C. §821 before 2006, and that 10 U.S.C. §821 permits trial by military commission only for war crimes that were proscribed under the international law of war at the time of the offense, was conspiracy a violation of the international law of war at the time of Bahlul's offense?

As noted at Lawfare, the D.C. Circuit rarely grants en banc review, so this order is a big deal. And, since the D.C. Circuit has that whole second-highest-court reputation, you can expect this case to be a contender for Supreme Court review.

Briefing deadlines in the matter start with Bahlul's brief on May 24, and conclude with his reply brief on August 8. Oral arguments will be heard on September 30.

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