Updated Monday, January 28, 2013 at 09:56 AM
GUANTÁNAMO BAY NAVAL BASE, Cuba — A civilian appeals court has now reversed the verdicts of the only two Guantánamo Bay prisoners convicted in trials by military tribunal, casting a shadow over proceedings set to resume this week at the U.S. base in Cuba for the men accused in the Sept. 11 terrorist attack.
A federal appeals court Friday threw out the military-commission conviction of Ali Hamza al-Bahlul, who was charged with providing material support to terrorism and conspiracy for making propaganda videos for al-Qaida. That followed the dismissal in October of the conviction of Salim Hamdan, a driver for Osama bin Laden.
Al-Bahlul and Hamdan were the only prisoners convicted in a trial by the tribunals known as a military commission. The five other convictions of Guantánamo prisoners came through plea bargains.
There are two pending death-penalty cases at Guantánamo: one against a prisoner accused of orchestrating the attack on the USS Cole in 2000, the other against five men accused of planning and aiding the Sept. 11 terrorist attacks. But the recent reversals have raised new questions about the use of military commissions in complex terrorism cases.
“The fact that no conviction can stand up on appeal does not bode well for the military-commission system,” said James Connell, a lawyer for Ammar al-Baluchi, a Pakistani who is one of the five charged in the Sept. 11 attacks.
The U.S. Court of Appeals for the District of Columbia Circuit on Friday overturned al-Bahlul’s November 2008 conviction. In October, the court overturned Hamdan’s August 2008 conviction. In both cases, the reasoning was the same.
The court determined that before enactment of the Military Commissions Act of 2006, which authorized the tribunals for the terrorism suspects at Guantánamo, only violations of the international law of war and pre-existing federal offenses were subject to trial by military commission. The court said the charges of material support for terrorism and conspiracy did not meet that standard.
The Justice Department let the deadline to appeal the Hamdan ruling expire, perhaps because he already has been released after serving his time and is back home in Yemen with his family. But the government said it disagreed with the ruling in court papers and is likely to challenge the al-Bahlul ruling.
A Pentagon spokesman, Army Lt. Col. Todd Breasseale, said “the al-Bahlul ruling has no bearing on the substantive merits” of the Sept. 11 case, which will be the subject of a four-day pretrial hearing scheduled to start Monday.
Hamdan was a relatively minor figure, dismissed as a “small player,” even by the military judge who presided over his trial. Al-Bahlul, now serving life at Guantánamo, didn’t even mount a defense.
The Sept. 11 case features five defendants facing the death penalty for charges that include nearly 3,000 counts of murder for their alleged roles in planning and helping orchestrate the worst terrorist attack on U.S. soil.