Al Bahlul is the first appeal of a Guantánamo military commission conviction to proceed before the Court of Military Commission Review. It is notable because it involves a conviction and life sentence in search of supporting war crimes offenses. 

 

Mr. Bahlul has been imprisoned at Guantánamo for nearly a decade. After two presidential administrations, one Supreme Court decision, two acts of Congress, three sets of charges, a trial that concluded more than two years ago, appellate proceedings that began more than a year ago, a reshuffling of the Court of Military Commission Review, and a decision to hear the appeal en banc, the government has all but conceded that the offenses for which Mr. Bahlul was originally convicted before a military commission – conspiracy, solicitation and providing material support for terrorism – were not established law-of-war offenses under U.S. or international law at the time they were allegedly committed.

 

The court appears to recognize this as well, because on January 25, 2011, it issued certified questions on its own and ordered the parties to address whether Mr. Bahlul’s conviction can nonetheless be supported under a “joint criminal enterprise” theory of liability, or on the ground that he “aided the enemy,” despite the fact that he owed no duty or allegiance to the United States.  These questions are the subject of tomorrow’s hearing. 

 

The court’s action is highly irregular because the government expressly withdrew reliance on a “joint criminal enterprise” theory of liability and never argued a charge of “aiding the enemy” at Mr. Bahlul’s commission trial. Common sense also dictates that attempting to justify a life sentence for an alleged “enemy” who owes no duty or allegiance to the United States because he “aided the enemy” is legal bootstrapping. 

 

Military commission judges, no less than other military officers, are sworn to uphold and defend the Constitution, not devise creative legal theories never argued by the parties at trial in order to uphold law-of-war convictions. Although the government may have badly botched the prosecution of Mr. Bahlul, the court should reject the invitation in the government’s response to the certified questions to search out some legal theory – any legal theory – to support his conviction. Nothing less is demanded of a regularly constituted court. 

 

The court should also reject the government’s notable reliance on the “Seminole Wars” of the 1800s, a genocide that led to the Trail of Tears. The government’s characterization of Native American resistance to the United States as “much like modern-day al Qaeda” is not only factually wrong but overtly racist, and cannot present any legitimate legal basis to uphold Mr. Bahlul’s conviction. 

 

Sadly, however, the removal and attempted eradication of Native Americans is not unlike the treatment of detainees at Guantánamo in that each stands alongside slavery and Jim Crow, the targeting of immigrants, and the internment of Japanese-Americans, among other examples, as a stark reminder of how in times of fear and xenophobia our nation has brutalized and demonized human beings as “others” who are unworthy of the rights most Americans take for granted in order to deny them equal protection of the law. 

 

Guantánamo was designed to be a prison where no laws applied. Today, it remains a prison reserved exclusively for Arab and Muslim men, many of whom the president recently announced would be subjected to military commissions, an ad hoc system intended to manufacture convictions unattainable in federal court. This secondary system of justice should be abandoned. Mr. Al Bahlul’s conviction should be overturned, and the prison, which administration officials continue to recognize threatens and demeans the United States, must be closed now.
 

The Center for Constitutional Rights has led the legal battle over Guantanamo for the last nine years – sending the first ever habeas attorney to the base and sending the first attorney to meet with an individual transferred from CIA “ghost detention” to Guantanamo. CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country to represent the men at Guantanamo, ensuring that nearly all have the option of legal representation. In addition, CCR has been working to resettle the approximately 30 men who remain at Guantánamo because they cannot return to their country of origin for fear of persecution and torture.