The U.S. Supreme Court refused to curb the power of the military commissions set up after the Sept. 11 terrorist attacks, leaving intact a ruling that lets the tribunals handle cases that don’t involve violations of international law.
The justices, without comment, rejected an appeal by Ali Hamza Ahmad Suliman al Bahlul, once the public relations manager for Osama bin Laden and creator of an al-Qaeda recruitment video.
Bahlul was seeking to overturn his conviction for conspiracy to commit war crimes, which is a U.S. offense but not a violation of international law. Bahlul’s lawyers say the Constitution requires that charge to be tried in a federal court. Justice Neil Gorsuch didn’t take part in the high court action.
The rebuff gives the Trump administration more leeway as it considers expanding use of the Guantanamo Bay military prison.
Bahlul, who has been held in Guantanamo since 2002, said the Constitution allows only limited exceptions to the general requirement that criminal prosecutions take place in court. His lawyers say military commissions traditionally have been limited to battlefield situations involving universally recognized war crimes.
The Trump administration urged the high court to reject the appeal, contending that Congress has long authorized military tribunals to try offenses that don’t violate international law.
The Supreme Court hasn’t ruled in a Guantanamo case since 2008, when it said inmates have constitutional rights and may seek release in federal court.
Civil liberties groups and a list of constitutional and international law experts urged the court to hear Bahlul’s case. They said it presented a fundamental and recurring question about the legitimacy of the commissions, set up under the 2006 Military Commissions Act.
“Whether military commissions can try offenses other than international war crimes has been the central constitutional question surrounding the Guantanamo trials since shortly after their inception,” the National Institute of Military Justice argued in a court filing.
A federal appeals court in Washington upheld Bahlul’s conspiracy conviction on a 6-3 vote, though the majority splintered in its reasoning. Writing for three members of the majority, Judge Brett Kavanaugh called Bahlul’s argument “extraordinary.”
“It would incorporate international law into the U.S. Constitution as a judicially enforceable constraint on Congress and the president,” Kavanaugh wrote.
Three dissenting judges said Bahlul’s prosecution before a commission “infringes the judiciary’s power to preside over the trial of all crimes.”
Bahlul’s lawyers also argued that the Military Commissions Act can’t be constitutionally applied retroactively.
The case is Bahlul v. United States, 16-1307.