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US appeals court vacates two convictions of ex-Qaeda propagandist

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(Globalpost/GlobalPost)

A US federal appeals court vacated two convictions Monday of a former Al-Qaeda propagandist and questioned the authority of the military commissions system at Guantanamo Bay to prosecute suspects on certain charges.

In a split 4-3 decision, the US Court of Appeals in Washington tossed out Ali Hamza Ahmad Suliman al-Bahlul's conviction for providing material support for terrorism and solicitation of others to commit war crimes, but rejected his challenge to a charge of conspiracy to commit war crimes.

A military commission -- one of the special military tribunals at Guantanamo -- had convicted Bahlul of all three crimes and sentenced him to life in prison.

As a result of its ruling by a panel of seven judges, the appellate court demanded that the military commissions conduct a review for possible changes to Bahlul's sentence after a smaller panel of the court considers remaining challenges to his conspiracy conviction.

The court found that the military commissions lack the authority to try suspects on material support and solicitation charges for actions predating the Military Commissions Act of 2006, which laid out those charges.

"Solicitation of others to commit war crimes is plainly not an offense traditionally triable by military commission," Judge Karen LeCraft Henderson wrote in the 150-page ruling.

"The government concedes it is not an international law-of-war offense."

She noted the government also does not consider material support to be an international war crime.

"The government offers little domestic precedent to support the notion that material support or a sufficiently analogous offense has historically been triable by military commission," Henderson added.

Because Bahlul was not charged with either spying or aiding the enemy -- the only offenses then listed by statute -- "the military commission trying him had jurisdiction only over violations triable by military commission under 'the law of war,'" thus excluding material support and solicitation, she wrote.

- Commissions' future 'uncertain' -

The Center for Constitutional Rights, which has represented several clients at Guantanamo, said the ruling meant the future of the military commissions system was "uncertain."

"Today's Court of Appeals ruling defers resolving important questions -- Can conspiracy charges be tried by military commission? Is domestic law relevant to that decision? -- to a future case," it said in a statement.

"But the five separate opinions ... are entirely clear on one point: all seven judges agreed that material support for terrorism is not a war crime triable by military commission, even for a defendant who forfeited his defenses at trial."

Human Rights First said the decision highlights the problems of using military commissions rather than civilian courts to try terror suspects.

President Barack Obama has struggled to transfer such cases to US soil in the face of fierce opposition in Congress.

"There is no question that Bahlul could have been tried in a US federal court on terrorism-related charges and justice would have been served long ago," said Daphne Eviatar, senior counsel at Human Rights First.

"Sadly, the same is true for all of the cases now pending before the Guantanamo military commissions."

Federal courts have completed nearly 500 terror cases -- including 67 involving suspects captured overseas -- since the September 11, 2001 attacks on the United States, according to Justice Department data cited by the US-based rights group.

In contrast, military commissions have convicted only eight suspects since 9/11 and two of those convictions have been overturned on appeal.

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http://www.globalpost.com/dispatch/news/afp/140714/us-appeals-court-vacates-two-convictions-ex-qaeda-propagandist