Nine years after its last major ruling on the rights of detainees at the Guantanamo military prison, the Supreme Court refused on Monday to return to that abiding constitutional controversy. Without comment, the Justices turned aside a significant challenge to the use of military commissions to try foreign nationals for crimes that could be prosecuted in civilian courts, especially when the nation is not formally at war, as now.
The denial of review left intact a five-year old guilty verdict by a commission of a Yemeni national, Ali Hamza Ahmad Suliman al Bahlul, who had served as a propaganda aide to Al Qaeda terrorism network leader Osama bin Laden. As a result of the denial, al Bahlul’s lawyers appear to be out of options to challenge his conviction and life sentence in a military prison.
The appeal by al Bahlul’s military defense team was the most direct constitutional challenge to reach the Justices on the powers of military commissions since that often-troubled judicial system was set up in 2002 and revised in 2006.
While the court was acting on that case, the Justices made no announcement on Monday morning on what they will do with another constitutional controversy before them – the two cases on the legality of President Trump’s executive order limiting entry to the U.S. of foreign nationals from Mideast nations and of foreign refugees from around the globe.
The basic question in those cases at this point is whether to go ahead and decide them, or dismiss them following the President’s decision last month to issue a new, and expanded, version of the immigration restrictions. Action on that question could come at any time, even later today, but likely within the next few days. The court had been scheduled to hold a hearing today on those cases, but that was cancelled after the new presidential order came out on September 24.
In the Justices’ new order against review in the al Bahlul case, Justice Neil Gorsuch was listed as not having taken part. There was no explanation for that; he is the newest member of the court, but he has been available while the case was being examined by his colleagues.
The lack of an official explanation for the refusal to take on the dispute did not mean there is no practical effect. It erases, at least for the time being, any question about the validity of each of the few convictions already obtained in Guantanamo trials, because all eight of those involved a crime that is usually prosecuted only in civilian court – a so-called “domestic crime,” rather than one that violates international law. Five of those guilty verdicts involved only that kind of a charge, according to Guantanamo records.
More significantly, the denial could have an effect on the scope of the military’s still-unfolding prosecution of five individuals charged with key roles in the terrorist attacks on the U.S. on September 11, 2001. Among other charges in that case, there is also one that could be tried in civilian court as a domestic offense.
University of Texas law professor Stephen I. Vladeck, who closely monitors the Guantanamo cases, has written recently that “the principal innovation (and one of the central controversies) of the post-Sept. 11 military trials at Guantanamo has been to extend the reach of military commissions to purely domestic criminal offenses.” (Vladeck, as a lawyer, had filed papers urging the Justices to review the al Bahlul case.)
The most important of al Bahlul’s challenges to his conviction for conspiracy was that the specific offense is not a war crime under international law and thus, under prior Supreme Court rulings, cannot constitutionally be tried by a military commission when the civilian courts are open and functioning. (The specific charge, technically, was of an “inchoate conspiracy” – a plot that was laid but not actually carried out.)
Other claims in the appeal were that, if such a domestic crime can be pursued before a military commission, at least that could not be done for actions that occurred before the military commission system began functioning, and that the entire military commission system is unconstitutional because only foreign nationals, not U.S. citizens, can be tried in that system.
Although it is not clear what led the Justices to conclude that the appeal was not significant enough for them to review, the fact is that the rulings by a federal appeals court in al Bahlul’s case were widely splintered, so it was not fully clear just what the basis was for the decisions and not clear what the legal status of the commissions is in the wake of those rulings.
The Trump Administration, in urging the Justices to deny review, had argued that al Bahlul’s case involved only issues that were specific to the facts of his case – including the point that he had told his lawyer not to put on any defense, and himself had not raised any of the challenges that were now being pressed in the appeal by his military defense lawyers.
The fact is, though, that the Justices have regularly refused to second-guess how the lower courts have been deciding the Guantanamo cases. The last time there was a significant decision on the Guantanamo detainees was a 2008 ruling, in the case of Boumediene v. Bush, giving those prisoners a right to challenge their continued detention at the U.S. military base. Even that decision, as applied by the U.S. Court of Appeals for the District of Columbia Circuit, has turned out to be of little aid to detainees in gaining their release from the Guantanamo prison. Releases have come on the initiative of federal government officials, not the courts.
Action by the Supreme Court is now awaited on another significant detainee case, an attempt by a Saudi Arabian national, Abd al-Rahim al-Nashiri, to prevent his trial by a military commission on charges of 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-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 – the time of his alleged crime.
The Justices are currently scheduled to consider al-Nashiri’s appeal at a private conference on Friday.
Although some 780 foreign nationals have been held at Guantanamo at one time or another since that terrorist detention facility was set up early in 2002, there are only 41 detainees remaining there. The Trump Administration has indicated it may resume transferring terrorist suspects to that prison, but it has not yet done so.
Legendary journalist Lyle 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.