United States Court

United States Court

of

Military Commission Review

_____

Appellate Oral Argument

United States

v.

ali Hamza Ahmad Suliman al Bahlul

CMCR No. 09-001

______

Thursday, March 17, 2011

10:00 a.m.

United States Court of Appeals for the Federal Circuit

Courtroom 201

717 Madison Place, N.W. Washington, D.C. 20439

Counsel:

Counsel for the United States, the Appellee, are:

Captain John F. Murphy, JAGC, U.S. Navy,[1]

CaptainEdward S. White, JAGC, U.S. Navy, and

ColonelFrancis Gilligan, JA, U.S. Army (Ret.).

Captain Whitewill argue for the United States.

______

Counsel for Mr. al Bahlul,the Appellant, are:

Mr. Michel Paradis, Esq.

Captain Mary R. McCormick, JAGC, U.S. Navy, and

Major Todd E. Pierce, JA, U.S. Army

Mr. Paradis will argue for the Appellant.

The Court:

The Court, sitting en banc (i.e., eight judges after recusals) will hear the oral arguments and decide the legal issues.

Colonel Barbara Brand, JA, U.S. Air Force, Presiding Judge

Colonel David Conn, JA, U.S. Army

Colonel Eric Price, JAGC, U.S. Navy

Colonel John Hoffman, JA, U.S. Army

Colonel Martin Sims, JA, U.S. Army

Colonel Theresa Gallagher, JA, U.S. Army

Colonel Joseph Perlak, U.S. Marine Corps, and

Colonel William Orr, Jr., JA, U.S. Air Force

Case Summary:[2]

The government alleges: Mr. al Bahlul, the Accused, traveled to Afghanistan in 1999 with the intent to join al Qaeda. After completing training at an al Qaeda camp, he swore bayat (allegiance) to Usama bin Laden and began working as technical support for him. Mr. al Bahlul ultimately served as Usama bin Laden’s personal secretary, conducting research, and drafting speeches and correspondence for him. On behalf of two 9/11 hijackers, he prepared the propaganda declarations styled as martyr wills and arranged for them to pledge fealty or “bayat” to Usama bin Laden. He directed media activities, including production of a video variously called State of the Ummah or The Destruction of the American Destroyer Cole. This video includes images of the U.S.S. Cole with a simulated explosion superimposed on it as well asnews footage interspersed with Usama bin Laden’s and others’ speeches on issues such as the Israeli-Palestinian conflict, the government of Saudi Arabia, suicide bombings, and the moral necessity of waging holy war against Western countries. In 2001 Pakistani forces captured Mr. al Bahlul and turned him over to U.S. custody. He was then transported to Guantánamo Bay, Cuba.

From May 7, 2008 to November 3, 2008, Mr. al Bahlul was tried by Military Commission at Guantánamo Bay, Cuba. He was convicted, contrary to his pleas, of conspiracy and solicitation to commit several law of war offenses including murder of protected persons, as well as providing material support for terrorism. A three-judge panel of the Court originally heard oral argument in this appeal on January 26, 2010. Subsequently, the Court voted to consider the case en banc, and then specified two issues for additional briefing and argument.

Issues Presented:

The Court of Military Commission Review will hear arguments on the following issues:

I.Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution?

II.Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation?

Order of Proceedings:

The Court Commissioner will call the court to order.

Each party will have thirty minutes for argument.

Appellant Defense Counsel will argue first.

Appellee Government’sCounsel will argue second.

The Defense may ask to reserve up to 10 minutes for rebuttal.

The judges may ask questions at any time during the arguments.

After arguments are complete, the court will adjourn, and will deliver

its decision in due course.

Questions may be addressed to Lieutenant Colonel Tanya J. Bradsher, Defense Press Operations, Pentagon Room 2D961, , Work# 703-614-3300.

Appellate Judge Biographies:

Colonel Barbara Brand, JA, U.S. Air Force - Presiding Judge

Colonel Barbara Brand was sworn in as an Appellate Judge on the U.S. Court of Military Commission Review on December 4, 2008. She is the Chief Judge, United States Air Force Court of Criminal Appeals. Other assignments include: Appellate Military Judge, Air Force Court of Criminal Appeals, Bolling Air Force Base, Washington; Military Trial Judge, Central Circuit/Region, Randolph Air Force Base, Texas; Staff Judge Advocate, 81 Training Wing, Keesler Air Force Base, Mississippi; Assistant Chief Trial Judge, Bolling Air Force Base; Staff Judge Advocate, 694th Intelligence Group, Fort George G. Meade, Maryland; Deputy Staff Judge Advocate, 88th Air Base Wing, Wright-Patterson Air Force Base, Ohio; Assistant Staff Judge Advocate, General Law, Headquarters Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio; Circuit Defense Counsel, Western Circuit, Travis Air Force Base, California; Circuit Trial Counsel, 1st Circuit, Bolling Air Force Base; Area Defense Counsel, RAF Greenham Common, United Kingdom; Area Defense Counsel, MacDill Air Force Base, Florida; and Assistant Staff Judge Advocate, Chief of Military Justice, 56th Combat Support Group, MacDill Air Force Base. Colonel Brand obtained her undergraduate degree from Western Kentucky University in 1976. She received her Juris Doctorate from the University of Louisville Law School.

Colonel David Conn, JA, U.S. Army

Colonel David Conn was sworn in as an Appellate Judge on the U.S. Court of Military Commission Review on December 4, 2008. He is a Senior Judge on the U.S. Army Court of Criminal Appeals where he has served since 2008. Prior to his ACCA assignment he served in various assignments as an Army Judge Advocate, including Trial Counsel and Brigade Legal Advisor, Frankfurt, Germany; Associate Professor of Constitutional Law at the U.S. Military Academy; Senior Defense Counsel at Fort Riley, Kansas; Chief, Administrative and Civil Law, Fort Stewart, Georgia; Army Civil Litigation Attorney in Arlington, Virginia; European Regional Defense Counsel; Trial Judge and Chief Circuit Judge, 1st Circuit, Fort Drum, New York. Colonel Conn is a native of Pennsylvania and graduate of Washington & Jefferson College where he received his Bachelor of Arts Degree. He is received his Juris Doctorate degree from the College of William and Mary, and his Master of Laws degree from the Army’s Judge Advocate General’s School in Charlottesville.

Captain Eric Price, JAGC, U.S. Navy

Captain Eric Price was sworn in as an Appellate Judge on the U.S. Court of Military Commission Review on December 4, 2008. He has served on the Navy-Marine Corps Court of Criminal Appeals since August 2008. He previously served as Commanding Officer, Region Legal Service Office, Naval District Washington, and as a military prosecutor, defense counsel, and appellate defense counsel. His other assignments include: Executive Assistant and Special Counsel to the General Counsel of the Navy; Staff Judge Advocate to Commander, U.S. Naval Forces Central Command/U.S. FIFTH Fleet and Combined Forces Maritime Component Command in Manama, Bahrain; Commander, Carrier Group FIVE embarked in USS KITTY HAWK (CV 63), Yokosuka, Japan, and Commander, Naval Special Warfare Group TWO; Executive Officer, Naval Justice School; Navy JAG Corps Accessions Detailer; and Naval Legal Service Office Subic Bay, Republic of the Philippines. A native of Fairmont, West Virginia, Captain Price received a Bachelor’s Degree from West Virginia University (WVU), Juris Doctorate from the WVU College of Law, and Master of Laws from The Army Judge Advocate General’s School, Charlottesville, VA.

Colonel John Hoffman, JA, U.S. Army

Colonel John Hoffman, U.S. Army, Judge Advocate General’s Corps, was sworn in as an Appellate Judge on the U.S. Court of Military Commission Review on November 30, 2010. He assumed duties as an Associate Judge, U.S. Army Court of Criminal Appeals on July 10, 2007. Colonel Hoffman is from Pontiac, Michigan. In 1972 he received a B.S. in Business Administration from Ferris State University. Judge Hoffman attended the Detroit College of Law (now the Michigan State University School of Law) and received his Juris Doctor in 1976. He was awarded the Master of Laws degree from the Army’s Judge Advocate General’s School in Charlottesville, Virginia in 1990. Colonel Hoffman joined the U.S. Army Judge Advocate General’s Corps 1981. His assignments include: Executive Officer to the Army General Counsel; Staff Judge Advocate, Surface Deployment and Distribution Command;Staff Judge Advocate, U.S. Army Recruiting Command, Fort Knox; Chief, Procurement Fraud Division, Office of The Judge Advocate General; Deputy Staff Judge Advocate, Fort Meade; Officer-in-Charge, Heilbronn Legal Center, VII Corps; Senior Defense Counsel, Berlin Brigade; and Trial Counsel, 3rd Armored Division and 3rd Infantry Division.

Colonel Martin Sims, JA, U.S. Army

Colonel Martin Sims was sworn in as an Appellate Judge on the U.S. Court of Military Commission Review on November 30, 2010. He is a Judge on the Army Court of Criminal Appeals where he has served since August of 2009. Immediately prior to his present assignment, Colonel Sims served as the Staff Judge Advocate for the 25th Infantry Division and Multi-Division North in Tikrit, Iraq. His previous assignments include service as Deputy Chief of the International and Operational Law Division of the Office of The Judge Advocate General; Deputy Staff Judge Advocate for the U.S. Army Alaska; Brigade Judge Advocate for the 172d Separate Infantry Brigade; Deputy Chief of the U.S. Army Claims Service Europe; Deputy Legal Advisor to the Commander of the NATO Stabilization Forces in Bosnia-Herzegovina; Military Legal Assistant to the Army Auditor General; Commissioner with the U.S. Army Court of Criminal Appeals; Defense Appellate Counsel; Senior Trial Counsel for the 32d Army Air Defense Command; and Trial Counsel/Legal Assistance Attorney for the 41st Field Artillery Brigade. A native of Tennessee, he received his Bachelor of Arts from Vanderbilt University, his Juris Doctor degree from the University of Tennessee College of Law, and a Master of Laws in Military Law with a specialization in Criminal Law from The U.S. Army Judge Advocate General’s School in Charlottesville, Virginia.

Colonel Theresa Gallagher, JA, U.S. Army

Colonel Gallagher was sworn in as an Appellate Judge on the U.S. Court of Military Commission Review on November 30, 2010. She assumed duties as an Associate Judge, U.S. Army Court of Criminal Appeals in August 2010. Her prior assignments include: Command Judge Advocate, Area Support Group- Kuwait; Trial Judge, 1st Judicial Circuit; Chief, Government Appellate Division; Deputy Chief, Government Appellate Division; Branch Chief, Government Appellate Division; Chief, Claims Division, III Corps & Fort Hood; Chief, Criminal Law Division, III Corps & Fort Hood; Senior Defense Counsel, Region V (Fort Lewis, WA); Training Attorney, Trial Counsel Assistance Program, Government Appellate Division; Administrative Law Attorney, 1st Armored Division (Baumholder, Germany); Trial Counsel, 1st Armored Division (Baumholder, Germany); Trial Defense Counsel (Kitzingen and Wuerzburg, Germany). Colonel Gallagher earned her Bachelor of Arts degree from the California State University, Fresno, her Juris Doctor from the University of the Pacific, McGeorge School of Law, and her Master of Laws from The U.S. Army Judge Advocate General’s School in Charlottesville, Virginia.

Colonel Joseph Perlak, U.S. Marine Corps

Colonel Perlak was sworn in as an Appellate Judge on the U.S. Court of Military Commission Review on November 30, 2010. He Perlak is a Judge on the Navy-Marine Corps Court of Criminal Appeals where he has served since June 2009. Prior to this assignment he served as the Chief of Operational Law for the United States European Command, Stuttgart, Germany. His previous assignments include service as deputy staff judge advocate, military prosecutor, Special Assistant United States Attorney, senior defense counsel, Special Assistant to Counsel for the Commandant of the Marine Corps, United Nations Military Observer, program acquisition and contingency contracting attorney, War Plans Officer, and Deputy Director of the Navy-Marine Corps Appellate Defense Division. Colonel Perlak is a native of Massachusetts and graduate of the College of the Holy Cross. He received his Juris Doctorate degree from Western New England College School of Law and holds a Master of Laws degree from the Army’s Judge Advocate General’s School in Charlottesville, Virginia.

Colonel William Orr, Jr., JA, U.S. Air Force

Colonel Orr was sworn in as an Appellate Judge on the U.S. Court of Military Commission Review on March 17, 2011, prior to oral argument. He is a Senior Judge on the Air Force Court of Criminal Appeals, where he has served since August 2010 and from July 2002 through November 2006. His prior assignments include: Chief, Regional Military Judge, European Region; Military Assistant and Special Counsel, Office of the Air Force General Counsel; Staff Judge Advocate, 60th Air Mobility Wing, 35th Fighter Wing, and 432nd Fighter Wing; Military Judge, Eastern Circuit; Strategic Policy Planner, Directorate for Strategic Plans and Policy; Deputy Chief, Operations Law Branch, International and Operational Law Division; Office of the Judge Advocate General; Executive Officer to the Headquarters Tactical Air Command Staff Judge Advocate, Langley Air Force Base; and Deputy Staff Judge Advocate, 416th Bombardment Wing. A native of Ohio, Colonel Orr earned his Bachelor of Arts and Juris Doctor degrees from Ohio Northern University.

1

[1]Captain Murphy is Chief Prosecutor, Office of Military Commissions.

[2]The Court of Military Commission Review’s Rules of Practice, Recordings of Oral Arguments, Briefs of Appellate Counsel, and other appellate documents will be available on the new DoD Military Commissions website shortly after March 31, 2011.