WASHINGTON: A federal appeals court on Thursday upheld the conspiracy conviction of a Guantanamo Bay detainee who once served as Osama bin Laden’s personal assistant.

Bahlul was arrested by local officials in Pakistan after the Sept 11 attacks and turned over to the US military, which transferred him to Guantanamo Bay. The Pentagon said he produced propaganda videos glorifying Al Qaeda and assisted with preparations for the Sept 11, 2001, terrorist strikes.

The US Court of Appeals for the District of Columbia Circuit ruled 6-3 that a military tribunal was authorised to convict Ali Hamza al-Bahlul of conspiracy charges.

Bahlul was tried and convicted before a military commission under a system created after the Sept 11 terrorist attacks.

A divided three-judge panel of the same court threw out the conviction last year, but that decision was set aside after the Obama administration asked the full appeals court to reconsider the case.

The previous ruling could have limited the government’s ability to prosecute terror suspects outside of the civilian justice system.

But in the latest ruling, a majority of judges did not agree on the reasons for the outcome. At issue is whether the Constitution allows Congress to make conspiracy to commit war crimes an offense triable by military commissions, even though conspiracy is not recognised as an international war crime.

Four judges said the Constitution does permit Congress to make such a determination. Judge Brett Kavanaugh, writing for the four, said foreign nations, through international law or otherwise, cannot have “a de facto veto power” over Congress’ determination of which war crimes a military tribunal may consider. Kavanaugh also cited historical precedent going back more than 150 years.

“The two most important military commission precedents in US history the trials of the Lincoln conspirators and the Nazi saboteurs were trials for the offence of conspiracy,” he said.

Two other judges voted to uphold the conviction, but did so for different reasons.

Published in Dawn, October 21st, 2016