90 | Towards the Closure of Guantanamo
Circuit court remanded that conviction to the original panel of the Court for it to
dispose of remaining issues.
212. The judges unanimously agreed that the charges for terrorism and solicitation must
be vacated as ex post facto violations, given that the conduct in question occurred
prior to the enactment of the 2006 Military Commissions Act. The decision in
Bahlul does not, however, fully resolve the viability of charging conspiracy as a
stand-alone offense because the majority reasoned that Bahlul had forfeited his ex
post facto objection by failing to raise it on appeal, and accordingly decided the
point on the lower standard of “plain error.” Thus, the eventual fate of conspiracy
as a stand-alone offense, and the government’s domestic war crimes theory remain
pending a full review. Further, the various opinions in the decision expressed
different visions of the role of military commissions and the meaning of what the
government presents as domestic war crimes. 245
c.
Due process concerns
213. The Inter-American Commission welcomes the substantial amendments made to
the MCA in 2009, removing some grave due process violations set out in the 2006
MCA and including important changes to the military commissions, in particular the
granting of some basic procedural protections afforded in courts-martial
proceedings. Despite these significant improvements, the IACHR is still deeply
concerned with regard to, inter alia: the independence and impartiality of the
military commissions; the uncertainty regarding the application of the U.S.
Constitution; respect for the right to equality before the law, to confrontation and to
a speedy trial; respect for the principle of legality, and the retroactive prosecution of
crimes.
214. The IACHR has recognized that United States courts generally offer a range of due
process protections to individuals who are the subject of criminal proceedings. 246
Federal courts in the U.S. have successfully dealt with high-profile cases of terrorism
and have reportedly completed nearly 500 cases related to international terrorism
since September 11, 2001. 247 Ahmed Ghailani, a participant in the 1998 bombings
of the U.S. embassies in Kenya and Tanzania, was transferred from Guantanamo in
June 2009 and tried in the U.S. District Court for the Southern District of New York.
On January 25, 2011, he was sentenced to life in prison and is now held at the ADX
Supermax prison in Florence, Colorado. Sulaiman Abu Ghaith, Bin Laden’s son-inlaw and spokesman for Al-Qaeda after the 2001 attacks, was the most senior AlQaeda member sentenced in federal courts. On September 23, 2014, the same
245
246
247
See in this regard, Opinio Juris, Guest Post: The D.C. Circuit’s En Banc Ruling in Al Bahlul: Legal Innovation,
Tradition, and America’s Domestic Common Law of War, by Jonathan Hafetz. Available at:
http://opiniojuris.org/2014/07/22/guest-post-d-c-circuits-en-banc-ruling-al-bahlul-legal-innovation-traditionamericas-domestic-common-law-war/
IACHR, Report No. 44/14, Case 12.873, Merits (Publication), Edgar Tamayo Arias, July 17, 2014, para. 150.
National Constitution Center, Constitution Check: Are the Guantanamo war crimes courts now doomed? By
Lyle Denniston, July 22, 2014. Available at: http://blog.constitutioncenter.org/2014/07/constitution-checkare-the-guantanamo-war-crimes-courts-now-doomed/
Organization of American States | OAS
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