In a pair of decisions handed down last October and this January, respectively, the federal appeals court in Washington held that the military commissions at Guantanamo may not try individuals who are charged solely with "providing material support" to, or conspiring with, al Qaeda. Although these two offenses are well-established crimes under U.S. law, the D.C. Circuit held in its decisions in United States v. Hamdan and United States v. al-Bahlul that Congress in the Military Commissions Act of 2006 only authorized military trials for recognized war crimes under international law—which conspiracy and material support are not. Thus, in the first two post-conviction appeals under the 2006 statute, the government had two convictions reversed. And although the government asked the full D.C. Circuit late last week to reconsider these decisions, it seems likely that such a request will be denied—and that this reasoning will be left intact going forward.
It's hard to overstate the significance of these decisions to the ongoing debate over whether the U.S. government should prosecute terrorism suspects in Article III civilian courts or in military commissions. To date, this debate has taken place largely on policy terms—contrasting the ability (and stability) of our ordinary Article III civilian courts with the special security and secrecy measures the government could rely upon in military commission proceedings at Guantanamo. But whether one supported civilian or military trials for terrorism suspects, it was hard to disagree that the alternative was at least formally available.
The D.C. Circuit's decisions in the Hamdan and al-Bahlul cases necessarily change the terms of that conversation. Now, not only is the government precluded from trying conspiracy and material support offenses at Guantanamo, the door has also flung open for broader challenges to the jurisdiction of the commissions—and to limiting the commissions to trying only those offenses that are not just crimes, but well-established war crimes, such as the September 11 attacks themselves. Thus, whenever the government arrests a terrorism suspect like Sulaiman Abu Ghaith, who, despite his misdeeds, cannot be tied directly to specific acts of international terrorism, the choice between civilian courts and military commissions has already been made for them.
About Stephen Vladeck Professor of Law at the American University Washington College of Law
Daphne Eviatar Senior Counsel Associated with Human Rights First's Law & Security Program
Andy Worthington Freelance Investigative Journalist
Danny Gonzalez Director of Communications for Move America Forward
Sterling Thomas Defense Counsel for 9/11 Defendant Ammar al Baluchi
Daniel J. Gallington Senior Policy and Program Adviser at the George C. Marshall Institute
Mike Rogers Chairman of the House Permanent Select Committee on Intelligence