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July 15, 2014

Bahlul Ruling Could See Another Gitmo Conviction Overturned

By Heather Brandon

Yesterday’s ruling by the D.C. Court of Appeals, vacating two of the charges against Osama bin Laden’s PR man, Ali Hamza Ahmad Suliman al Bahlul, has implications for another former Guantamao Bay detainee, Australian David Hicks. In 2007, as part of a deal allowing him to return to Australia and serve nine months in prison there, Hicks pled guilty before a military commission to the crime of material support for terrorism, making him the “first Guantanamo prisoner to be convicted of an alleged war crime.” But in yesterday’s decision, all seven judges agreed that material support for terrorism is not a war crime triable by military commission.

Hicks lodged an appeal against his conviction in November 2013, following a 2012 Appeals Court finding which quashed a conviction for material support for terrorism against Osama bin Laden’s driver, Salim Ahmed Hamdan. In Hamdan’s case the Court found that like yesterday’s Bahlul ruling, material support for terrorism was not a war crime triable by military commission, and also ruled that the prosecution was unconstitutional as the offence was established by Congress years after it was allegedly committed.

Hicks’ appeal was stayed, pending the outcome of yesterday’s case.  Now that the Bahlul court has ruled that the crime he was convicted of should never have been available, Hicks is “one step closer to having his conviction as a war criminal quashed.”

As Human Rights First said yesterday, the Court of Appeal’s holding “highlights the problems of continuing to rely on the military commissions to seek justice for terrorism.” These sentiments were echoed by David Hicks’ former U.S. military defense lawyer, Dan Mori. Speaking to the Australian Broadcasting Corporation, Mori spoke of his personal experience with military commissions, calling the system both “unfair” and “rigged.” Mori also criticized the 2009 changes to military commissions instituted by the Obama administration, saying that “(t)he changes that Obama brought in really didn’t substantially change the system … it’s not a functioning system.”

While Mori saw the military commissions system “dying on the vine,” he had high praise for U.S. federal courts, stating that “the U.S. federal court system has been prosecuting terrorism offences and being very effective, right, and getting this accomplished.” Indeed, just a few months ago a New York federal court jury found Osama bin Laden’s son-in-law, Suleiman Abu Ghaith, guilty on all counts, including a charge of material support for terrorism. From arrest to conviction, the whole process took just one year. Mori called for federal court trials for those allegedly responsible for the 9/11 attacks, saying “I don’t think a New York jury would acquit (alleged 9/11 mastermind) Khalid Sheikh Mohammed. I don’t know what they’re afraid of.”

Yesterday’s ruling is yet another strike against the military commissions system, which has been notoriously slow-moving and plagued by uncertainty over the applicable court rules. This is in stark contrast to the federal courts, which have achieved nearly 500 convictions related to terrorism since 9/11. As the trial of the alleged 9/11 perpetrators approaches, the Obama administration should look at the facts and use the system that works, not the one that is broken.