Bahlul v. United States, No. 19-1076

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Rao, Circuit Judge
• Citation: 967 F.3d 858
• Decision Date: 04 August 2020
• Docket Number: No. 19-1076
• Parties: Ali Hamza Ahmad Suliman AL BAHLUL, Petitioner v. UNITED STATES of America, Respondent

967 F.3d 858

Ali Hamza Ahmad Suliman AL BAHLUL, Petitioner
v.
UNITED STATES of America, Respondent

No. 19-1076

United States Court of Appeals, District of Columbia Circuit.

Argued February 7, 2020
Decided August 4, 2020

Michel Paradis, Washington, DC, Counsel, Office of the Chief Defense Counsel, argued the cause for petitioner. With him on the briefs were Mary McCormick, Timothy McCormick, and Todd E. Pierce.

Eric S. Montalvo, Washington, DC, was on the brief for amici curiae The Anti-Torture Initiative of the Center for Human Rights & Humanitarian Law at American University Washington College of Law in support of petitioner.

Joseph Palmer, Washington, DC, Attorney, argued the cause for respondent. With him on the brief were Steven M. Dunne, Chief, and Danielle S. Tarin, Attorney.

Before: Griffith and Rao, Circuit Judges, and Edwards, Senior Circuit Judge.

Rao, Circuit Judge:

Ali Hamza Ahmad Suliman Al Bahlul was Osama bin Laden's head of propaganda at the time of the September 11 attacks. After he was captured in Pakistan, Al Bahlul was tried and convicted by a military commission in Guantanamo Bay. Our court subsequently vacated two of his three convictions on ex post facto grounds and remanded his case back to the military

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courts, where his life sentence was reaffirmed. In this most recent appeal, Al Bahlul raises six different statutory and constitutional challenges to his sentence and detention, including three challenges to the appointment of the officer who convened the military commission under the Military Commissions Act of 2006. Only one argument has merit: In reaffirming Al Bahlul's life sentence, the Court of Military Commission Review failed to apply the correct harmless error standard, so we reverse and remand for the court to reassess the sentence. Each of Al Bahlul's remaining arguments lacks merit for the reasons explained below.

I.

Al Bahlul is a Yemeni national who travelled to Afghanistan in the late 1990s to join Al Qaeda. Once there, Al Bahlul pledged an oath of loyalty to Osama bin Laden, underwent military training, and eventually led Al Qaeda's propaganda efforts. Most notably, he created a video for bin Laden in the aftermath of the U.S.S. Cole bombing that celebrated the terrorist attack on an American destroyer and called for jihad against the United States. Al Bahlul also served as bin Laden's personal assistant and secretary for public relations. Just before the attacks of September 11, 2001, Al Bahlul arranged loyalty oaths for two of the hijackers. In the immediate aftermath, he operated the radio used by bin Laden to follow media coverage of the attacks.

Weeks after the September 11 attacks, Al Bahlul fled to Pakistan, where he was captured in December 2001 and turned over to the United States. He was transferred in 2002 to the United States Naval Station at Guantanamo Bay, Cuba, where he has since been detained. This is Al Bahlul's second direct appeal challenging his prosecution under the military commission system established by Congress in the Military Commissions Act of 2006 ("2006 MCA"), Pub. L. No. 109-366, 120 Stat. 2600.¹ In previous opinions, we have provided a detailed account of his legal actions, so we provide only a brief summary here. See Al Bahlul v. United States (Al Bahlul I ), 767 F.3d 1, 5–8 (D.C. Cir. 2014) (en banc); Al Bahlul v. United States (Al Bahlul III ), 840 F.3d 757, 758 (D.C. Cir. 2016) (per curiam).

Al Bahlul was tried by a military commission convened pursuant to the 2006 MCA. Section 948h of the 2006 MCA provides that "[m]ilitary commissions ... may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose." 10 U.S.C. § 948h. In a number of provisions, the 2006 MCA refers to the person designated under Section 948h as "the convening authority." See, e.g. , 10 U.S.C. §§ 950b, 950f(c). The 2006 MCA also vests the Convening Authority with significant powers and responsibilities other than convening military commissions. Both the government and Al Bahlul agree that the Convening Authority has the responsibilities of a constitutional "Officer[ ] of the United States" under the Appointments Clause, U.S. CONST. art. II, § 2, cl. 2, but they disagree about whether the Convening Authority is properly considered a principal or inferior officer. The Convening Authority's final decision to

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"approve, disapprove, commute, or suspend [a] sentence" is reviewed by the Court of Military Commission Review ("CMCR"), although the 2006 MCA provides for review "only with respect to matters of law." 10 U.S.C. §§ 950b(c)(2)(C), 950f(d) (2006).

In 2007, the Secretary of Defense designated Susan Crawford as the Convening Authority. Prior to her designation, Crawford was already serving as a Senior Judge of the Court of Appeals for the Armed Forces ("CAAF")² as well as an employee serving a three-year term in the Senior Executive Service. Crawford convened a commission to try Al Bahlul of three substantive offenses enumerated in the 2006 MCA: conspiracy to commit war crimes, providing material support for terrorism, and soliciting others to commit war crimes. See id. §§ 950u, 950v(b)(25), 950v(b)(28) (2006). The three charges were predicated on largely the same conduct. Al Bahlul refused to participate in the proceedings and instructed his appointed defense counsel to waive objections and to abstain from any motions. Al Bahlul, however, admitted every factual allegation against him but one—an allegation that he once used a suicide belt. Nonetheless, he pleaded not guilty on the grounds that American tribunals lack the authority to try him.

The commission convicted Al Bahlul on all three counts and sentenced him to life in prison. Crawford approved the conviction, and the CMCR affirmed. See United States v. Al Bahlul , 820 F. Supp. 2d 1141 (CMCR 2011). A panel of this court then vacated all three convictions on the grounds that the 2006 MCA did not authorize prosecutions based on conduct occurring before 2006 unless the conduct was already prohibited as a war crime and triable by military commission. See Al Bahlul v. United States , No. 11-1324, 2013 WL 297726 (D.C. Cir. Jan. 25, 2013).

Sitting en banc, this court upheld Al Bahlul's conviction for conspiracy while vacating the two remaining convictions. See Al Bahlul I , 767 F.3d 1. Because Al Bahlul raised no objections at trial, we reviewed his newly raised constitutional objections only for plain error. See id. at 8–11. We held that Al Bahlul's ex post facto challenge to his conspiracy conviction failed under the plain error standard on two grounds: First, "the conduct for which he was convicted was already criminalized under 18 U.S.C. § 2332(b)," which punishes conspiracies to kill United States nationals; second, "it is not ‘plain’ that conspiracy was not already triable by law-of-war military commission." Id. at 18. After vacating the remaining two convictions under the Ex Post Facto Clause,³ id. at 27–31, the court ordered the case to be remanded, "after panel consideration, ... to the CMCR to determine the effect, if any, of the two vacaturs on sentencing." Id. at 31.⁴

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On remand to the CMCR, Al Bahlul argued for the first time that Crawford's appointment as Convening Authority was unlawful, both on statutory and constitutional grounds. He also argued that intervening Supreme Court precedent required de novo review of his ex post facto challenge to the conspiracy conviction. Without remanding to the military commission, the CMCR rejected these arguments on the merits and determined that a life sentence continued to be appropriate, reasoning that the military commission would have imposed the same sentence even if Al Bahlul had been convicted only of conspiracy. See Al Bahlul v. United States , 374 F. Supp. 3d 1250 (CMCR 2019). Al Bahlul appealed to this court, and we have exclusive jurisdiction under 10 U.S.C. § 950g.

Al Bahlul raises six discrete arguments on appeal. First , he argues that the CMCR applied the wrong harmless error standard in reviewing his sentence on remand by failing to determine beyond a reasonable doubt that the military commission would have imposed the same sentence absent the two convictions vacated by Al Bahlul I . Second , he claims that Crawford's appointment as the Convening Authority violated the 2006 MCA, which in his view permits the Secretary to designate only individuals who are already officers of the United States at the time of the designation. Third , he argues that Crawford's appointment violated the Appointments Clause of the Constitution because the Convening Authority acts as a principal officer who must be appointed by the President with Senate approval. Fourth , even if the Convening Authority is an inferior officer, Al Bahlul contends that Crawford's appointment violated the Appointments Clause because Congress did not vest the appointment of the Convening Authority in the Secretary by law. Fifth , Al Bahlul argues that recent Supreme Court precedent requires us to reexamine his ex post facto challenge to his conspiracy conviction, this time de novo. Sixth and finally, he raises several challenges to the conditions of his ongoing confinement—namely, that he has allegedly been subjected...