Military Tribunals Can't Try Terrorists for Civil Crimes: D.C. Cir

By Peter Clarke, JD on June 16, 2015 | Last updated on March 21, 2019

Following the D.C. Circuit's decision on Friday, military tribunals will have a more difficult time prosecuting terrorists. The court threw out another charge brought against Ali Hamza al-Bahlul, a former assistant to Osama bin Laden.

For the past 13 years, al-Bahlul has been held in Guantanamo Bay. A number of criminal charges have been brought against him unsuccessfully. The latest charge, conspiracy, was knocked down by the D.C. Circuit for a simple reason: the international law of war doesn't recognize the offense of conspiracy.

A New Reality for Military Tribunals

Following the Sept. 11 attacks, military tribunals were created prosecute terrorist suspects. Since these courts are not civil courts, the attorneys for Ali Hamza al-Bahlul argued that domestic crimes cannot be charged. The Obama administration saw no problem with charging al-Bahlul with conspiracy, arguing that Congress had the authority to make conspiracy a crime for the purposes of military tribunals.

In a 2-1 decision, the circuit court agreed with al-Bahlul's attorneys. The court has a good point: if Congress could decide to try al-Bahlul with conspiracy, then they could reasonably decide to try him for any other civil offense. That would essentially turn the military commissions at Guantanamo into regular civil courts. The court confirmed that military tribunals are different from civil courts, and a key difference is the notion that civil court offenses shouldn't apply.

What This Means for Future Terrorists

Judge Karen LeCraft Henderson wrote an 85-page dissent, arguing that the court's opinion will make it unreasonably challenging to prosecute terrorists in the future. She expresses concern that the government won't be able to bring legitimate charges against terrorists just because the international community hasn't been as throughout as civil courts in defining criminal activities.

Human rights advocates, including the senior counsel for Human Rights First, have suggested that this problem should be fixed by trying terrorists in federal civilian courts.

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