Last week’s US Court of Appeals decision throwing out the Guantanamo conviction of Osama bin Laden’s publicist for creating videos that “glorified attacks on the United States” has created a huge precedent, and a major headache for prosecutors in other tribunals.
The ruling was based on the fact that the charge of “conspiracy” as a war crime related to material support for terrorism was not passed by Congress until 2006, whereas the detainee was captured in 2002, and the crimes committed well before that. The ruling, in essence, was an affirmation of the Constitutional ban on ex post facto laws, that Congress cannot simply make things a crime after the fact then charge someone for breaking the law before it was made.
Prosecutors had sought to downplay this, saying they could easily throw out the “conspiracy” charges related to Khalid Sheikh Mohammed and other 9/11 detainees and still have plenty of things to convict them for, more than enough to execute them. Except now the Pentagon won’t let them.
Pentagon officials are preventing the prosecution from dropping the charge, even though they insist it is not “legally viable” and will add huge uncertainty to the trials, arguing that it is conceivable that the US Supreme Court might overturn the Appeals Court ruling and insist that Congress can make ex post facto laws just this once. The Pentagon officials blocking the move reportedly fear that if they cede the issue it will make it even harder to prosecutor some other detainees for whom they have little or no evidence of any wrongdoing.
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