A federal appeals court on Oct. 20 upheld [7] (PDF [8]) a conspiracy conviction of the former personal assistant to Osama bin Laden. The US Court of Appeals for the District of Columbia Circuit [9] ruled that a military tribunal had jurisdiction to convict Ali Hamza Ahmad Suliman al-Bahlul [10]. Bahlul was tried and convicted by a military commission created after September 11, 2001. A three-judge panel had thrown out [11] the conspiracy conviction last year, and the Obama administration requested that the full appeals court reconsider the case. The issue in the case was whether the constitution grants Congress the ability to determine that conspiracy to commit war crimes is an offense triable by military commissions even though conspiracy crimes are not recognized as international war crimes. The majority determined that foreign nations could not have "a de facto veto power" over Congress' determination of which war crimes may be considered by a military tribunal:
This case therefore raises one central legal question: Under the U.S. Constitution, may Congress establish military commissions to try unlawful enemy combatants for the offense of conspiracy to commit war crimes, even if conspiracy is not an offense under the international law of war? The answer is yes. We know that from the text and original understanding of the Constitution; the structure of the Constitution; landmark Supreme Court precedent; longstanding congressional practice, as reflected in venerable and contemporary federal statutes; and deeply rooted Executive Branch practice, from the 1800s to the present.
The ruling was 6-3, with two judges concurring and three dissenting.
From Jurist [12], Oct. 21. Used with permission.
