Washington: 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 explained.