WASHINGTON (AP) — A federal appeals court Tuesday said it will take another look at a three-judge panel’s decision to overturn the military commission conviction of an alleged al-Qaida propagandist.
In January, the three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia threw out the conviction of Ali Hamza al-Bahlul — who was charged with providing material support to terrorism and conspiracy for making propaganda videos for al-Qaida.
That’s because a panel in a previous case concluded that before the enactment of the Military Commissions Act of 2006, which authorized the tribunals for the terrorism suspects at Guantanamo Bay, only violations of the international law of war and pre-existing federal offenses were subject to military commission trials. The previous panel said the charges of material support for terrorism didn’t meet that standard.
The full seven-judge court Tuesday vacated the al-Bahlul ruling and will hear arguments in the case in September.
In the earlier case, the panel threw out the conviction of Salim Ahmed Hamdan, a former driver for Osama bin Laden who served a prison term for material support for terrorism. Hamdan had been sentenced to 5 1/2 years, given credit for time served and is back home in Yemen, reportedly working as a taxi driver.
Al-Bahlul and Hamdan were the only prisoners convicted in a trial by the tribunals known as a military commission. The five other convictions of Guantanamo prisoners came through plea bargains.
Hamdan was a relatively minor figure, dismissed as a “small player,” even by the military judge who presided over his trial. By contrast, Al-Bahlul, now serving life at Guantanamo, didn’t even mount a defense.
The decision by the full appeals court to rehear the al-Bahlul case, known as an “en banc,” is unusual. According to the D.C. Circuit rules, an en banc rehearing ordinarily will not be ordered unless it is necessary to secure or maintain uniformity of the court’s decisions, or the proceeding involves a “question of exceptional importance.”
The court asked the parties to address two issues in their briefs, in addition to the ones already raised:
—Whether the Constitution’s bar against ex post facto convictions for violating laws that were not in place when an alleged crime occurred applies to detainees at Guantanamo, and
—Whether conspiracy was a violation of the international law of war at the time of al-Bahlul’s offense.
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