January 27, 2013
D.C. Circuit Vacates al Bahlul's Military Tribunal Conviction
The D.C. Circuit on Friday vacated a military commission conviction of Ali Hamza Ahmad Suliman al Bahlul for material support, conspiracy, and solicitation, according to Lawfare and others. (Thanks to Lawfare for the links.) The ruling came after the government filed a supplemental brief a couple weeks ago arguing that the D.C. Circuit's ruling in Hamdan ("Hamdan II") compelled the court to vacate the ruling, but also disagreeing with the court's reasoning in Hamdan II. (The government made the latter point in order to preserve the argument for appeal.)
Recall that the D.C. Circuit vacated Hamdan's military commission conviction for "material support for terrorism" in October 2012. The court ruled that the Military Commissions Act of 2006, which criminalized material support, did not apply to acts before 2006, and that the government's other authority, 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war" didn't apply, because material support wasn't a violation of international law of war.
The government argued that Hamdan II compelled the court to vacate al Bahlul's conviction, too. But it also went on to argue that the D.C. Circuit was wrong in Hamdan II, preserving that argument for appeal.
The D.C. Circuit agreed and, referencing the government's supplemental brief, on Friday issued a one-page per curiam ruling vacating al Bahlul's conviction.
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