In 2008, Ali al-Bahlul, a propagandist for Al Qaeda who has been held at Guantánamo Bay, Cuba, since early 2002, was convicted by the military tribunal there and sentenced to life in prison. But officials had no evidence that Mr. Bahlul was involved in any war crimes, so they charged him instead with domestic crimes, including conspiracy and material support of terrorism.
Last Friday, a panel of the federal appeals court in Washington, D.C., reversed Mr. Bahlul’s conspiracy conviction because, it said, the Constitution only permits military tribunals to handle prosecutions of war crimes, like intentionally targeting civilians. (The court previously threw out the other charges on narrower grounds.)
The 2-1 decision, by Circuit Judge Judith Rogers, was a major rebuke to the government’s persistent and misguided reliance on the tribunals, which operate in a legal no man’s land, unconstrained by standard constitutional guarantees and rules of evidence that define the functioning of the nation’s civilian courts.
Of course, that was the whole point of the tribunals, as their architects in the Bush administration saw it: they held out the promise of relatively quick trials and easy convictions, beyond the reach of the Constitution and the scrutiny of the American public. But it didn’t work out that way. As with Mr. Bahlul, most of the prisoners at Guantánamo could not be linked to specific attacks. So in 2006 and 2009, Congress gave the tribunals the authority to try certain domestic crimes, even though legal scholars had repeatedly warned that this was an unconstitutional transfer of jurisdiction away from the federal courts.