## Facts

- Ali Hamza Ahmad Suliman al Bahlul, a Yemeni national, served as an assistant to Osama bin Laden within al Qaeda.
- Al Bahlul produced a propaganda video celebrating the bombing of the USS *Cole* and urging jihad against the United States.
- Al Bahlul also assisted with planning the September 11, 2001 attacks.
- The United States prosecuted al Bahlul before a Guantánamo military commission convened under the Military Commissions Act (MCA).
- The commission convicted al Bahlul of conspiracy (styled as conspiracy to commit war crimes) and other offenses including solicitation and providing material support for terrorism, and imposed a severe sentence.
- The United States Court of Military Commission Review affirmed the convictions.
- While al Bahlul’s appeal was pending in the D.C. Circuit, the court issued decisions indicating that the MCA could not be applied retroactively in military commissions unless the charged conduct constituted a pre-existing offense triable by military commission under the law of war.
- A D.C. Circuit panel vacated al Bahlul’s convictions under that approach, and the government sought rehearing en banc.

## Issues

1. Whether Congress, consistent with Article I and Article III, could authorize a military commission to try al Bahlul for inchoate conspiracy based on pre-MCA conduct.
2. Whether applying the MCA to prosecute al Bahlul’s conspiracy charge for conduct occurring before the MCA’s enactment violated the Ex Post Facto Clause, given the posture of the case and the standards of review.
3. Whether al Bahlul’s solicitation and material-support convictions could stand where those offenses were not triable by military commission.

## Decision

- The en banc D.C. Circuit upheld (affirmed) al Bahlul’s military-commission conviction for inchoate conspiracy.
- The court concluded that Congress could, in this setting, place conspiracy within military-commission jurisdiction as an offense historically tried by U.S. military commissions in connection with armed conflict.
- The court rejected al Bahlul’s ex post facto attack on the conspiracy conviction under the applicable review framework, emphasizing that al Bahlul had not properly preserved the constitutional objection and could not meet the demanding standard for relief.
- The court set aside (dismissed/vacated) al Bahlul’s solicitation and material-support convictions because those offenses were not within military-commission jurisdiction (and the government conceded the point).
- The case was remanded for further proceedings consistent with the disposition of the counts.

## Legal Principles

- Congress may authorize military commissions to try certain offenses connected to hostilities under its war powers and its power to define and punish offenses against the law of nations, subject to constitutional limits.
- In assessing whether an offense is triable by military commission, courts look to the law-of-war tradition and historical U.S. military-commission practice, not solely to modern international-law codifications.
- Retroactivity challenges to military-commission prosecutions may be constrained by preservation rules; when a defendant forfeits a constitutional claim, an appellate court applies plain-error review and will not grant relief unless the error is clear under existing law and affects substantial rights.
- Military commissions lack jurisdiction over offenses that are not recognized as triable law-of-war offenses in this context; convictions for such non-triable counts must be set aside.

## Conclusion

The en banc D.C. Circuit held that al Bahlul’s Guantánamo military commission could constitutionally adjudicate his inchoate conspiracy conviction and declined to overturn that conviction on ex post facto grounds given the review posture, while also setting aside his solicitation and material-support convictions as beyond military-commission jurisdiction and remanding for proceedings consistent with that ruling.


Al Bahlul v. United States, 767 F.3d 1 (2014) (en banc)