Court curbs power of mil­i­tary com­mis­sions

Ap­pel­late panel rul­ing re­vives de­bate over ter­ror­ism tri­als at Guan­tanamo Bay.

Los Angeles Times - - THE WORLD - By Ti­mothy M. Phelps tim.phelps@la­ Twit­ter: @tim­phelp­sLAT

WASH­ING­TON — An im­por­tant fed­eral ap­peals court has re­duced the pow­ers of mil­i­tary com­mis­sions to try ter­ror­ism sus­pects for cer­tain crimes, re­open­ing the de­bate over whether such cases should in­stead be han­dled by civil­ian courts.

The de­ci­sion by the U.S. Court of Ap­peals for the Dis­trict of Columbia Cir­cuit could have an im­pact on many of the de­tainees at the U.S. mil­i­tary pri­son at Guan­tanamo Bay, Cuba, ac­cord­ing to legal ex­perts.

The D.C. Cir­cuit Court said that mil­i­tary com­mis­sions like those at Guan­tanamo do not have the power to han­dle cases in­volv­ing lesser charges such as con­spir­acy or pro­vid­ing ma­te­rial sup­port for ter­ror­ism, which can also be pros­e­cuted in U.S. civil­ian courts.

Their ju­ris­dic­tion, said two of three judges on the panel, is limited to rec­og­nized in­ter­na­tional war crimes.

The de­ci­sion Fri­day im­me­di­ately res­ur­rected a long-sim­mer­ing de­bate over whether peo­ple cap­tured by the U.S. in Afghanistan and else­where on sus­pi­cion of sup­port­ing Al Qaeda and other ter­ror­ist groups should be tried in civil­ian courts rather than the mil­i­tary com­mis­sions at Guan­tanamo.

The de­ci­sion “un­der­scores what so many of us have been say­ing for years,” said Sen. Pa­trick J. Leahy of Ver­mont, the top Demo­crat on the Se­nate Ju­di­ciary Com­mit­tee. “Amer­ica stands on stronger legal and moral ground when we use our fed­eral courts to try ter­ror­ists for their crimes.”

The de­ci­sion over­turned the last re­main­ing con­vic per­haps tion against Ali Hamza Bahlul, a Ye­meni who al­legedly served as Osama bin Laden’s public re­la­tions direc­tor and cre­ated videos glo­ri­fy­ing Al Qaeda’s at­tacks against the U.S.

Judge Karen Hen­der­son, who dis­sented from the rul­ing by Judges Ju­dith Rogers and David Ta­tel, likened Bahlul to Hitler’s pro­pa­gan­dist Joseph Goebbels and said Bahlul had bragged about his role in the Sept. 11 at­tacks.

Hen­der­son warned that the im­pact of the de­ci­sion would go far be­yond Bahlul’s case.

“My col­leagues bar the gov­ern­ment from em­ploy­ing mil­i­tary com­mis­sions to try in­di­vid­u­als who con­spire to com­mit war crimes against the U.S.,” she said. In the fu­ture, she said, mil­i­tary com­mis­sions would not be able to try any of­fense not “con­doned” by the in­ter­na­tional com­mu­nity.

“Their tim­ing could not be worse,” Hen­der­son warned, re­fer­ring to the mount­ing Is­lamic State threat in Iraq and Syria.

Steve Vladeck, an ex­pert on na­tional se­cu­rity law at Amer­i­can Uni­ver­sity in Wash­ing­ton, wrote in a blog post that “this is a Very. Big. Deal.” He said it would limit the fu­ture of Guan­tanamo com­mis­sions to the Sept. 11re­lated trial of Khalid Shaikh Mo­hammed and one other prisoner among the122 de­tainees still at the mil­i­tary pri­son.

Eu­gene Fidell, who teaches mil­i­tary law at Yale Law School, agreed with Vladeck’s as­sess­ment and said it was time to end the use of mil­i­tary com­mis­sions.

“There is so lit­tle left to the po­ten­tial ju­ris­dic­tion of mil­i­tary com­mis­sions,” Fidell said. “This pa­tient is dy­ing on the op­er­at­ing peo­ple, and it is time we said ‘do not re­sus­ci­tate.’ ”

Though the Supreme Court has over­turned de­ci­sions of the D.C. Cir­cuit on Guan­tanamo, it was not clear whether the Obama ad­min­is­tra­tion would ap­peal, given its pref­er­ence for us­ing civil­ian courts.

“The De­fense Depart­ment is study­ing the judges’ rul­ing and ex­plor­ing all legal op­tions,” said Army Lt. Col. Myles Cag­gins, the De­fense Depart­ment spokesman for mil­i­tary com­mis­sions.

For­mer Atty. Gen. Eric H. Holder Jr. said be­fore leav­ing his post this year that the Sept. 11 de­fen­dants would have been con­victed by now and be fac­ing ex­e­cu­tion if he had been al­lowed to try them in New York. But plans to do that caused an up­roar of crit­i­cism from Democrats as well as Repub­li­cans, and Congress moved to block it.

Chip Somodevilla Getty Images

SEN. PA­TRICK J. LEAHY (D-Vt.), fore­ground, hailed the rul­ing as an im­por­tant step to­ward mov­ing tri­als for Guan­tanamo de­tainees to fed­eral courts.

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