Two major new appeals to the Supreme Court, raising fundamental issues about the government’s power to use Guantanamo military courts to try war crimes, have been bogged down for weeks in difficulties over getting security clearance for documents in one of the cases.
Last week, all of this got sorted out, and the two cases have now started moving through the court’s process, on the same timetable. The cases have finally appeared on the docket, but in somewhat confusing form.
Both cases are shown as if they had arrived at the court and were placed on the docket last Monday, an action that starts the court’s normal schedule for a new case. Under that schedule, the government is due to file its responses – unless it obtains more time to do so, which appears likely — on May 31, after the ordinary 30-day period. (If the government does get more time to respond, the court may take no action on the two cases until early in its next term, starting in October.)
The docket pages also show this: the petition in the case of Abd al-Rahim al-Nashiri (now docketed at 16-8966) was filed on January 17, and in the case of Ali Hamza Ahmad Suliman al-Bahlul (16-1307), on March 28.
The al-Nashiri petition actually arrived at the court on March 17, but that is not noted on the docket. Al-Bahlul’s did reach the court on March 28. Technically, neither case was accepted by the court on the dates they arrived, and the apparent reason is that the court did not have a staff member in the clerk’s case-intake office with sufficient clearance to handle classified materials.
The uncensored version of the al-Nashiri petition has significant amounts of such supposedly secret information and the entire appendix is classified. The court under its normal procedure had to docket the petition in that form, along with a public version with the secret information blacked out, on page after page (for example, page 12, which appears amid a discussion of alleged torture methods used on al-Nashiri, is totally blotted out in black).
The al-Bahlul petition contains no classified information, so none of its wording has been redacted. Processing of his petition got slowed down because, in two places, there are references to the al-Nashiri petition, so the court did not want that case to proceed with a meaningless link.
So, from the start, the court’s staff has been treating the two cases as linked, at least for scheduling purposes. The government, when it responds, could file separately since the two do raise different questions of law.
While al-Nashiri, a Saudi Arabian national, has not yet gone to trial before a military commission at Guantanamo Bay in Cuba, al-Bahlul, a Yemeni national, was tried there and is one of the few to have been found guilty of a war crime by a modern commission.
Al-Nashiri faces charges that could lead to a death sentence, based on an alleged role in a plot that led to the bombing of a U.S. warship, the U.S.S. Cole, in a harbor in Yemen in 2000. Al-Bahlul was convicted of a war crimes conspiracy charge, based on his role as a propagandist for the late leader of the Al Qaeda terrorist network, Osama bin Laden. Al-Bahlul has been sentenced to a life-prison term.
If each of them gains a victory in the Supreme Court, that would go far to scale back the authority of the military commissions – a system that has been frequently stalled in the11 years since Congress created the tribunals to operate at the U.S. military prison at Guantanamo.
Both petitions include frontal constitutional challenges to the military commission, as they operated in these two cases. Al-Nashiri’s main claim is that the commission has no authority over him because the U,S. “war on terror” had not even begun in 2000, when his alleged crime occurred. Al-Bahlul’s broadest claim is that the commission system is unconstitutional because only foreign nationals, not U.S. citizens, are subject to commission trials.
A common theme of the two appeals is that Congress should not be allowed to set up a war crimes prosecution system within the military, diverting cases from the regular civilian courts that are open, fully functioning and capable of handling cases that involve classified information..
The Supreme Court has not engaged in a full-scale review of any war-on-terrorism case for nine years, since its 2008 decision in Boumediene v. Bush, creating a right for Guantanamo detainees to file challenges in U.S. civilian courts to their confinement.
Most of the court actions growing out of the Boumediene decision have come to an end in the U.S. Court of Appeals for the District of Columbia Circuit, which has taken a narrow view of the legal rights of the detainees.
The detainee prison has been operating at Guantanamo for more than 15 years, since January 2002. A total of 779 detainees have been held there throughout its existence, but only 41 remain there now.
The highest-profile individuals still there are the five who have been charged with war crimes related to the terrorist attacks on the U.S. on September 11, 2001. Their case before a military commission has been plagued with repeated procedural and substantive legal problems, and no trial date has yet been set definitely.
President Obama sought to close the detention facility, but was blocked repeatedly from doing so by Congress. The Trump Administration does not yet have a formal policy about it, but the new President has indicated that he opposes closing the prison and may use it to hold future detainees captured for alleged terrorist actions.
Aside from a legal right to contest their confinement, Guantanamo detainees have gained few legal protections.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, there this story first appeared.
