Ali Hamza Ahmad Suliman Al Bahlul v. United States of America

Court	United States Court of Appeals for the District of Columbia Circuit, United States
Case number	No. 22-1097 (D.C. Cir. 2023)
Decision title	Opinion for the Court filed by Circuit Judge Pan
Decision date	25 July 2023
Parties	Counsel for the Petitioner: Mr. Michel Paradis, Mr Todd E. Pierce and Ms. Alexandra Link, representing Mr. Ali Hamza Ahmad Suliman Al Bahlul. Counsel for the Respondent: Ms Danielle S. Tarin, Mr. Matthey G. Olsen, Mr. Steven M. Dunne and Mr. Joseph F. Palmer, representing United States of America.
Other names	Abu Anas al-Makki / Ali Hamza Ismael / Abu Anas al Yemeni / Muhammad Anas Abdullah Khalidi
Categories	Conspiracy to commit a terrorist attack, Material support to terrorism, Terrorism
Keywords	Attacking civilian objects , Attacking civilians, destruction of property, Murder of protected persons, Provision of material support for terrorism, Terrorism
Links	District Court Opinion
Other countries involved	Afghanistan Pakistan Yemen

Summary

Al Bahlul is a Yemeni national that has been imprisoned at the United States Detention Camp at the Guantanamo Bay Naval Base, Cuba, since 2002. After over a decade of legal proceedings related to his role as a media and propaganda secretary in al Qaeda and his involvement in the 2000 Bombing of U.S.S. Cole and the 9/11 Attacks on the World Trade Center in New York, USA, the D.C. Circuit Court rejected his appeal for resentencing and upheld his life sentence.

While Al Bahlul’s legal team argued that the lower courts and the Military Commission failed to adequately reconsider his sentencing after his initial 2008 convictions were appealed and evidence of potential torture was introduced, the D.C. Circuit disagreed. It held that the CMCR adequately considered the appropriate sentence for the conspiracy conviction and that evidence on the grounds of torture was inadmissible because regulations on admissible evidence were stricter at the time of Bahlul’s original sentencing and he should have made that claim in the previous decade of appeals.

Procedural history

Mr. Bahlul was one of the first detainees to be transferred to the Guantanamo Bay detention camp when the facility opened in 2002. Initially, he was charged with conspiracy to commit war crimes in 2004. The initial prosecution was suspended in 2006 when Hamdan v. Rumsfeld deemed the initial U.S. Authorization for Use of Military Force (AUMF) and Section 821 commissions unlawful.

Following the convening of a new military commission in 2008 under the Military Commissions Act (MCA), Bahlul was again charged with conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes. At the initial trial, Bahlul refused to participate, only making one unsworn admission of being the media director for al Qaeda (p. 5). The initial sentence was affirmed by the Court of Military Commission Review (CMCR) in 2011. In 2012, although a D.C. District Court panel vacated the conviction, an en banc panel in 2014 reinstated the conspiracy conviction and remanded the case to the panel. The panel again vacated the conspiracy charge as unconstitutional in 2015, and an en banc panel again reversed the panel decision and reinstated the conspiracy conviction in 2016 (p. 6). The case was remanded to the CMCR to further consider the material support and solicitation charges.

In 2019, the CMCR reaffirmed Bahlul’s life sentence for conspiracy and rejected Bahlul’s new challenge of lack of jurisdiction of the military court under the Appointment clause, because of the improper appointment of the convening authority (p. 6). Bahlul again appealed to the D.C. District Court in 2020 and the court vacated the sentence on the grounds that the CMCR failed to determine whether any constitutional errors were harmless beyond a reasonable doubt. The case was again remanded to consider the effect of the vacated charges on sentencing. The CMCR once again affirmed Bahlul's life sentence in 2022. Bahlul has once again appealed the CMCR’s decision to reinstate his life sentence (p. 8).

Related developments

31 October 2023: rehearing en banc denied (Appendix 10a).

Legally relevant facts

Bahlul became a member of al Qaeda in the late 1990s. As an al Qaeda member, he was directly responsible for creating, translating, and disseminating propaganda videos depicting al Qaeda attacks, such as the 2000 bombing of the U.S.S. Cole, and calling for Jihad against the United States. Bahlul later worked as bin Laden's personal assistant and public relations secretary. In that capacity, he helped two of the 9/11 hijackers write their "martyr wills," or propaganda statements to be used following the attacks, and made them take allegiance vows to bin Laden. Bahlul was responsible for bin Laden's media equipment a few days prior to 9/11, making sure that the latter could hear news broadcasts about them (p. 3).

Bahlul fled to Pakistan, where he was captured and turned over to the United States in September of 2001. He was subsequently convicted of conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes in 2008. While at the original trial Bahlul waived all pretrial motions, did not question the prosecution’s witness or raise any objections, the conviction and resulting life sentence have been continuously appealed. Since the material support and solicitation convictions have been vacated, this current appeal questions the legitimacy of CMCR proceedings considering recent Supreme Court decisions in Arthrex, the reaffirmation of the life sentence based on the conspiracy conviction considering the two vacated sentences, and the use of evidence at the original trial allegedly collected through torture considering changing laws (p. 8).

Core legal questions

Was the Military Commission constitutionally appointed and did it lack jurisdiction?

Had the CMCR wrongfully revaluated the sentence when it did not remand the case for resentencing?

Had the CMCR erred in reaffirming the life sentence considering original constitutional errors and the admission of evidence allegedly obtained through torture?

Specific legal rules and provisions

Military Commissions Act of 2006, 10 U.S.C. § 948b(a)-r(2006).

10 U.S.C. § 950v(b) (2006), added Pub. L. 109–366, §3(a)(1), Oct. 17, 2006, 120 Stat. 2625 , related to definitions, construction, and crimes triable by military commissions.
- Conspiracy to commit war crimes, 10 U.S.C. § 950v(b)(28) (2006).
- Providing material support for terrorism, § 950v(b)(25) (2006).
- Solicitation of others to commit war crimes, § 950u (2006).

Military Commissions Act of 2009, Pub. L. No. 111-84, 123 Stat. 2190, 2580 (2009), which the amended act is Title XVIII of the National Defense Authorization Act for Fiscal Year 2010.

U.S. CONST. art. II, § 2, cl. 2 – The Appointment Clause.

Court's holding and analysis

Finding no error or clear abuse of discretion by the CMCR, the D.C. Circuit affirmed their decision to uphold Bahlul’s life sentence. First, the court rejected Bahlul’s argument that the CMCR was invalidly appointed by an improper convening authority under Article II of the U.S. Constitution (p. 10). Rather, the court affirmed its rational from an earlier appeal including recent Supreme Court cases reclarifying the requirements for convening authorities (pp. 15-17).

The court also rejected Bahlul arguments that the CMCR should have remanded the case to the military commission and wrongfully considered evidence from the two dismissed charges when revaluating his life sentence. Rather, the evidence introduced for the dismissed charges would have been essentially the same to that introduced for the conspiracy charge alone, and therefore was properly considered (pp. 20-21).

Finally, the court determined that while Bahlul may have at some point had a claim against the admissibility of evidence, that claim was no longer valid. The court reasoned that since the regulations on admissible evidence were actually stricter at the time of Bahlul’s initial hearings, he had a decade of previously available opportunities to raise this claim and had therefore forfeited the right to do so now (pp. 22-24).

Instruments cited

Military Commissions Act of 2006, 10 U.S.C. (2006).

10 U.S.C. § 950v(b) (2006), added Pub. L. 109–366, Oct. 17, 2006, 120 Stat. 2625.
Military Commissions Act of 2009, Pub. L. No. 111-84, 123 Stat. 2190, 2580 (2009), which the amended act is Title XVIII of the National Defense Authorization Act for Fiscal Year 2010.