Bahlul v. United States

603 F.Supp.3d 1151

Ali Hamza Ahmad Suliman AL BAHLUL, Appellant

v.UNITED STATES, Appellee

CMCR 21-003

United States Court of Military Commission Review.

May 17, 2022

On briefs for appellant were Major Todd Pierce, JA, U.S. Army (Ret.), Senior Fellow, University of Minnesota Human Rights Center, Michel Paradis, Lieutenant Commander Aaron Shepard, JAGC, U.S. Navy, and Alexandra Link.

On brief for appellee were Michael J. O'Sullivan and Colonel George C. Kraehe, JA, U.S. Army.

BEFORE THE COURT Silliman, Deputy Chief Judge, and Pollard, Posch, Key, and Stephens, Appellate Judges¹

PUBLISHED EN BANC OPINION OF THE COURT

Opinion for the court Posch, Judge:

The case of appellant, Ali Hamza Ahmad Suliman Al Bahlul, is before the court on remand from the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). Al Bahlul v. United States (Al Bahlul IV ), 967 F.3d 858, 863, 877 (D.C. Cir. 2020), cert. denied , ––– U.S. ––––, 142 S. Ct. 621, 211 L.Ed.2d 387 (2021) ; Al Bahlul v. United States (Al Bahlul I ), 767 F.3d 1, 31 (D.C. Cir. 2014) (en banc). The D.C. Circuit returned the case for this court to reevaluate appellant's life sentence under the correct standard of review, specifically, to determine whether "the constitutional errors [in his case] were harmless beyond a reasonable doubt." Al Bahlul IV , 967 F.3d at 867 ; see Al Bahlul I , 767 F.3d at 31.

On remand, appellant first asserts that the military commission lacked jurisdiction because the convening authority was not a principal officer, as required by the Constitution's Appointments Clause, given that some convening authority decisions are not reviewable in the Executive Branch. Appellant's Br. 16–27 (Dec. 20, 2021) (discussing United States v. Arthrex, Inc. , ––– U.S. ––––, 141 S. Ct. 1970, 210 L.Ed.2d 268 (2021) ); Appellant's Reply Br. 5–15 (Jan. 26, 2022) (discussing same). Second, appellant argues there is no basis to conclude that the impact from his two unconstitutional convictions on his reassessed sentence was harmless beyond a reasonable doubt. Appellant's Br. 37–45, 49; Appellant's Reply Br. 19–26 (discussing United States v. Ghailani , 733 F.3d 29 (2d Cir. 2013), cert. denied , 572 U.S. 1010, 134 S.Ct. 1523, 188 L.Ed.2d 464 (2014), a case raised in appellee's brief). In addition, appellant urges the court to evaluate his sentence by comparison to other cases in which sentences less than confinement for life were imposed. Appellant's Br. 46–49; Appellant's Reply Br. 21–22. Appellant further urges the court to find that his sentence was "unlawfully increased by prison officials ," Appellant's Br. 28 (quoting United States v. Guinn , 81 M.J. 195, 200 (C.A.A.F. 2021) ); Appellant's Reply Br. 3, 15–16 (quoting same), because (i) he was placed in solitary confinement, Appellant's Br. 2–4, 28–33, 35–36, Appellant's Reply Br. 3, 15–18, and (ii) he is not eligible for parole, Appellant's Br. 3–4, 33–37; Appellant's Reply Br. 3, 15–16. As a remedy, appellant urges the court to (i) vacate his remaining conspiracy conviction, or alternatively (ii) "vacate or [ ] disapprove the remainder of the custodial portion of [his] sentence as incorrect in law and fact," or "at a minimum" (iii) remand his case to the commission for resentencing. Appellant's Br. 50; Appellant's Reply Br. 26.

In this decision, the court evaluates whether the constitutional errors at trial might have contributed to the adjudged sentence or were harmless beyond a reasonable doubt. The court also considers the other issues raised by appellant, and concludes by evaluating the appropriateness of the sentence.

I. Appellate history

The members of appellant's commission found him guilty of "conspiracy to commit war crimes, providing material support for terrorism and solicitation of others to commit war crimes." Al Bahlul I , 767 F.3d at 5 ; see Tr. 916–17. They sentenced appellant to confinement for life. Tr. 992.

The D.C. Circuit, en banc, vacated appellant's "convictions of providing material support for terrorism and solicitation of others to commit war crimes." Al Bahlul I , 767 F.3d at 31. It rejected appellant's "ex post facto challenge to his conspiracy conviction,"² which involved murder of protected persons, murder in violation of the law of war, and attacking civilians, in violation of 10 U.S.C. § 950v(b)(28) (2006). Id. at 5 ; see id. at 31. The Court remanded appellant's case to the original D.C. Circuit panel that heard it to consider the challenges to the conspiracy conviction that had not yet been considered. Id. at 31. Al Bahlul I also ordered that after consideration by the original D.C. panel, appellant's case be remanded "to the CMCR to determine the effect, if any, of the two vacaturs on sentencing." Id. That original panel vacated the conspiracy conviction because of a perceived Article III structural Separation of Powers objection that could not be forfeited below. Al Bahlul v. United States (Al Bahlul II ), 792 F.3d 1, 3, 22 (D.C. Cir. 2015). The D.C. Circuit, again sitting en banc, disagreed with that panel and affirmed this court's judgment upholding appellant's conspiracy conviction.³

Al Bahlul v. United States (Al Bahlul III ), 840 F.3d 757, 759 (D.C. Cir. 2016) (en banc) (per curiam). Appellant's case was returned to this court for sentence reassessment. Bahlul I , 767 F.3d at 31 ; see Al Bahlul v. United States , 374 F. Supp. 3d 1250, 1255 (CMCR 2019) (en banc) (explaining remand history).

This court reassessed and affirmed the sentence of confinement for life. Al Bahlul , 374 F. Supp. 3d 1250. Thereafter, appellant again sought dismissal of his conspiracy conviction, raising "six discrete arguments." Al Bahlul IV , 967 F.3d at 865. The D.C. Circuit affirmed the conspiracy conviction but agreed with appellant that this court erred in its sentence reassessment by applying the wrong standard of review. Id. at 865, 867. The Court remanded the case to this court to apply the "same harmless error standard that is uniformly applied in other criminal contexts in cases involving constitutional errors." Id. at 867 ; see Al Bahlul I , 767 F.3d at 31. It rejected appellant's remaining arguments, dismissing for lack of jurisdiction the "challenges to the conditions of his ongoing confinement." Al Bahlul IV , 967 F.3d at 877.

II. Appointments Clause challenge of convening authority

The D.C. Circuit denied appellant's Appointments Clause, U.S. Const. art. II, § 2, cl. 2, challenge to the Secretary of Defense's appointment of the Convening Authority, Susan Crawford. Id. at 870. The Court explained that "[b]ecause other executive officers directed and supervised the Convening Authority's work, ... Crawford was an inferior officer and was therefore properly appointed by the Secretary." Id. The Court applied the three-factor test in Edmond v. United States , 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997), stating:

Each of the three factors identified by Edmond and our subsequent cases indicates that the Convening Authority is an inferior officer. The Convening Authority's decisions are not final and are subject to review by the CMCR; the Secretary maintains additional oversight by promulgating rules and procedures; and the Convening Authority is removable at will by the Secretary.

Id. at 871. Al Bahlul IV concluded, "Here the factors identified by the Supreme Court in Edmond establish that the Convening Authority is an inferior officer. As an inferior officer, Crawford's appointment by the Secretary was perfectly consistent with the Appointments Clause." Id. at 873. The Court acknowledged that some convening authority decisions are final, such as "the power to modify charges, overturn a verdict, or commute a sentence, all of which are effectively unreviewable." Id. at 872. Yet, "all constitutional officers ‘exercis[e] significant authority on behalf of the United States,’ " id. (alteration in original) (quoting Edmond , 520 U.S. at 662, 117 S.Ct. 1573 ), and "the bulk of the Convening Authority decisions" are reviewable in this court, id. at 871 (citing 10 U.S.C. § 950f (2006) ).

Moreover, the Secretary of Defense, who is the convening authority's supervisor, is a superior convening authority and can withhold cases from the convening authority and handle them himself. See Rule for Military Commission (R.M.C.) 601(b), Manual for Military Commissions, United States (2007 ed.) ("The Secretary of Defense or a designated convening authority may refer charges to a military commission."); R.M.C. 601(f) (2007 ed.) ("The Secretary of Defense may cause charges, whether or not referred, to be transmitted to him for further consideration, including, if appropriate, referral."), quoted in Al Bahlul IV , 967 F.3d at 872 ; R.M.C. 604(a) Discussion (2007 ed.) ("Charges ... may be withdrawn only by the direction of the convening authority or a superior competent authority .... When directed to do so by [the] convening authority or a superior competent authority, trial counsel may withdraw charges or specifications ....").

Convening authority referral decisions also may be reviewable by this court depending on the facts and circumstances. See, e.g. , Vanover v. Clark , 27 M.J. 345, 347–48 (C.M.A. 1988) (stating extraordinary relief warranted where convening authority's withdrawal of charge, and re-referral of same charge plus two more, effectively overturned first judge's evidentiary ruling against government); United States v. Lawrence , No. 20011164, 2005 WL 6520486, at *2, 2005 CCA LEXIS 632, at *4 (Army Ct. Crim. App. Feb. 15, 2005) (unpublished) (regarding soldier assigned to rear unit, stating court-martial may try an accused not under command of convening authority unless jurisdiction "withheld or limited by a superior convening authority"); United States v. Squadere , No. S28522, 1991 WL 214061, at *2, 1991 CMR LEXIS 1314, at *5 (A.F.C.M.R. Oct. 10, 1991) (stating if guilty plea reneged, "prosecution could have withdrawn the charge and had it referred to the superior...