Al Bahlul v. United States
| Docket Number | 22-1097,Consolidated with 22-1173 |
| Decision Date | 25 July 2023 |
| Citation | 77 F.4th 918 |
| Parties | Ali Hamza Ahmad Suliman Al BAHLUL, Petitioner v. UNITED STATES of America, Respondent |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petitions for Review from the United States Court of Military Commission Review.
Michel Paradis, Counsel, Office of the Chief Defense Counsel, argued the cause for petitioner. With him on the briefs were Todd E. Pierce and Alexandra Link.
Eric L. Lewis was on the brief for amicus curiae Concerned Musicians in support of petitioner.
John S. Summers, Andrew M. Erdlen, and Alexander J. Egervary were on the brief for amici curiae The Center for Victims of Torture, et al. in support of petitioner.
Danielle S. Tarin, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Matthew G. Olsen, Assistant Attorney General for National Security, Steven M. Dunne, Chief, and Joseph F. Palmer, Attorney.
Before: Katsas and Pan, Circuit Judges, and Sentelle, Senior Circuit Judge.
Petitioner Ali Hamza Ahmad Suliman al Bahlul ("Bahlul") served as the personal assistant and public-relations secretary to Usama bin Laden, the leader of al Qaeda and mastermind of the 9/11 terrorist attack against the United States. Members of a military commission convicted Bahlul of conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes. The members sentenced Bahlul to imprisonment for life, and the U.S. Court of Military Commission Review ("CMCR") affirmed. On Bahlul's first appeal to this court, we upheld the conspiracy charge but vacated the other convictions as unconstitutional under the Ex Post Facto Clause. The CMCR subsequently reaffirmed Bahlul's remaining conspiracy conviction and life sentence, twice. In these petitions for review of the CMCR's latest decision, Bahlul asks us to vacate his conspiracy conviction or, alternatively, to remand his case for resentencing by military-commission members. We deny the petitions.
Bahlul is a Yemeni national who traveled to Afghanistan in the late 1990s and joined al Qaeda. He attended an al Qaeda training camp and pledged a loyalty oath to Usama bin Laden, who assigned him to al Qaeda's media operations. After suicide bombers targeted a U.S. naval ship, the U.S.S. Cole, in October 2000, bin Laden directed Bahlul to produce a propaganda video celebrating the attack. The video that Bahlul created included footage of the bombing, as well as calls for jihad against the United States. Al Qaeda distributed the film widely and in several languages as part of its recruiting efforts.
Bahlul then became bin Laden's personal assistant and secretary for public relations. In that role, Bahlul arranged for two of the 9/11 hijackers to make loyalty oaths to bin Laden and helped prepare their "martyr wills" — propaganda declarations to be used after the attacks. In the days before 9/11, Bahlul traveled with bin Laden and maintained bin Laden's media equipment. On the day of the attacks, Bahlul ensured that bin Laden could listen to media reports about them. Afterward, Bahlul fled to Pakistan, where he was captured in December 2001 and turned over to the United States. Since 2002, Bahlul has been detained at the U.S. Naval Base at Guantanamo Bay, Cuba.
We have described Bahlul's extensive legal proceedings in past decisions. See, e.g., Al Bahlul v. United States (Al Bahlul II), 767 F.3d 1, 6-8 (D.C. Cir. 2014) (en banc). Here, we focus on the procedural history relevant to this appeal.
In 2003, President George W. Bush designated Bahlul as eligible for trial by military commission under the 2001 Authorization for Use of Military Force ("AUMF") and 10 U.S.C. § 821. Military prosecutors charged Bahlul with conspiracy to commit war crimes in 2004. But that prosecution was suspended when the Supreme Court held in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), that the procedures governing the military commissions convened under the AUMF and § 821 rendered those commissions unlawful.
After Hamdan, Congress enacted the Military Commissions Act ("MCA") of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006). See also Military Commissions Act of 2009, Pub. L. No. 111-84, 123 Stat. 2190, 2574 (2009) ( MCA). That Act "establishe[d] procedures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission." 10 U.S.C. § 948b(a); see also id. § 948b(a) (2006). The MCA enabled military commissions to "be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose." Id. § 948h. Pursuant to that authority, in 2007, the Secretary of Defense designated Susan Crawford, a Senior Judge of the U.S. Court of Appeals for the Armed Forces ("CAAF"), as the convening authority.
In 2008, Crawford convened a new military commission under the MCA to try Bahlul. This time, prosecutors charged him with conspiracy to commit war crimes, 10 U.S.C. § 950v(b)(28) (2006); providing material support for terrorism, id. § 950v(b)(25) (2006); and solicitation of others to commit war crimes, id. § 950u (2006). The conspiracy and solicitation charges alleged seven object crimes: murder of protected persons, attacking civilians, attacking civilian objects, murder in violation of the law of war, destruction of property in violation of the law of war, terrorism, and providing material support for terrorism.
Bahlul refused to participate in his trial before the military commission. He waived all pretrial motions, made no objections, asked no questions of prosecution witnesses, and presented no opening argument, defense, or closing argument. The members of the commission convicted Bahlul of all three charges. They made written findings that Bahlul had conspired to commit and solicited all seven alleged object offenses. They also specifically found that he had committed ten of eleven alleged overt acts, including pledging a loyalty oath to bin Laden; preparing the U.S.S. Cole propaganda video "to solicit, incite and advise persons to commit terrorism"; acting as personal and media secretary to bin Laden; arranging for two of the 9/11 hijackers to "pledge fealty" to bin Laden and preparing their martyr wills; and researching the economic effect of 9/11 on the United States for bin Laden. Al Bahlul II, 767 F.3d at 8 n.2. Bahlul was acquitted of only one overt act — wearing a suicide belt to protect bin Laden.
During sentencing, Bahlul did not question the prosecution's witnesses or raise objections. He did give an unsworn statement, admitting that he worked with bin Laden and explaining that he was a "media person in al Qaeda" who "put some clips in the videotape that [the members] . . . . watched." Sentencing Transcript at 968:11-18, 969:9-10, 973:22-974:6. The members of the military commission imposed a life sentence.
The commission submitted the findings and sentence to the convening authority, as required by 10 U.S.C. § 950b(a). Crawford approved them in their entirety. At Bahlul's request, Crawford referred his case for review by the CMCR, pursuant to 10 U.S.C. § 950c(a). The CMCR affirmed his convictions and sentence in full. See United States v. Al Bahlul, 820 F. Supp. 2d 1141, 1158-59 (USCMCR 2011).
A panel of this court vacated Bahlul's convictions based on Hamdan v. United States, 696 F.3d 1238, 1247-48 (D.C. Cir. 2012), which held that the MCA did not authorize prosecution for conduct committed before its enactment in 2006. See Al Bahlul v. United States (Bahlul I), No. 11-1324, 2013 WL 297726, at *1 (D.C. Cir. Jan. 25, 2013) (per curiam). Sitting en banc, this court overruled Hamdan, and thus Bahlul I, but reinstated only Bahlul's conspiracy conviction. Bahlul II, 767 F.3d at 5, 11. We determined that the conspiracy conviction did not violate the Ex Post Facto Clause and remanded for a panel of this court to hear Bahlul's remaining challenges to that conviction. Id. at 18-27, 31.
A panel again vacated Bahlul's conspiracy conviction, determining that the MCA improperly permitted Article I tribunals to try conspiracy cases. Al Bahlul v. United States (Bahlul III), 792 F.3d 1, 3 (D.C. Cir. 2015). Sitting en banc once more, we reversed the panel decision and reinstated Bahlul's conspiracy conviction. Al Bahlul v. United States (Bahlul IV), 840 F.3d 757, 759 (D.C. Cir. 2016) (en banc). We remanded to the CMCR "to determine the effect, if any, of the two vacaturs [of the material-support and solicitation convictions] on sentencing." Bahlul II, 767 F.3d at 31.
The CMCR reaffirmed Bahlul's life sentence for conspiracy. It concluded that the military commission would have "sentenced the appellant to confinement for life" even "absent the error" with respect to his convictions for providing material support to terrorists and solicitation of others to commit terrorism. Al Bahlul v. United States, 374 F. Supp. 3d 1250, 1273 (USCMCR 2019). The CMCR also determined that life imprisonment was "an appropriate punishment for the sole remaining conviction." Id. at 1271-74. In addition, the CMCR rejected a new argument made by Bahlul: that the military court lacked jurisdiction to try him because the convening authority was not properly appointed under the Appointments Clause. Id. at 1255, 1265, 1268-71.
On appeal of that decision to this court, Bahlul contended that the CMCR erred in its resentencing decision, both by re-examining his sentence itself instead of remanding to a military commission, and by misapplying the harmless-error doctrine. Al Bahlul v. United States (Bahlul V), 967 F.3d 858, 865 (D.C. Cir. 2020). This court held that "it was not an abuse of discretion [for the CMCR] to reevaluate Al Bahlul's sentence without remand to the military commission." Id. at 866. But we...
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