Convicted Guantánamo Prisoner Ali Hamza Al-Bahlul Seeks End To His 14 Years Of Solitary Confinement – OpEd


Does anyone even remember Ali Hamza al-Bahlul?

14 years ago, on November 3, 2008, the day before Barack Obama won the 2008 presidential election, Ali Hamza al-Bahlul, a 39-year old Yemeni, who had been held in the prison at Guantánamo Bay since he arrived on the first flight into the prison on January 11, 2002, received a life sentence in his military commission trial, for which he had refused to mount a defense, and has been held ever since in solitary confinement.

That ought to be a shocking situation, but uncomfortable truths tend to be swallowed up in Guantánamo, and al-Bahlul’s apparently endless solitary confinement has been largely forgotten.

Al-Bahlul, who had apparently made a propaganda video for Al-Qaeda, and was unrepentant about his membership of Osama bin Laden’s terrorist organization, was convicted on charges of conspiracy, soliciting murder and providing material support for terrorism, although, in 20132014 and 2015, all those convictions were overturned, on the basis that, at the time the alleged crimes took place, they were not considered traditional violations of the law of war.

For 16 months, from June 2015, al-Bahlul continued to serve a life sentence and to be held in solitary confinement even though every aspect of his original conviction had been overturned, although that particularly egregious situation came to an end when, in a contentious split decision, the D.C Circuit Court (the appeals court in Washington, D.C.) upheld the conspiracy charge in October 2016.

Since then, he has largely disappeared from view. His lawyers, of course, appealed to the Supreme Court, but in October 2017 the Supreme Court refused to take up the case, and, instead, those representing him turned to Court of Military Commission Review, established when the military commissions were first set up under George W. Bush, although that avenue also proved fruitless, when, in March 2019, the court, as Lawfare described it, “upheld [his] conviction and life sentence for conspiracy to commit war crimes.”

Last month, his lawyers — Michel Paradis, Jennifer Joseph and Aaron Shepard of the Military Commission Defense Organization, and retired military defense attorney Todd Pierce — continued their long efforts to challenge the remnants of al-Bahlul’s original conviction and his life sentence in a submission to the D.C. Circuit Court, in which they sought to persuade the court to review his case.

As they explained, since al-Bahlul’s initial conviction, “the legal landscape has changed dramatically,” because, ”Within a year, Congress overhauled the military commissions’ statutory framework and procedures,” the court of appeals “vacated two of the three charges underlying Petitioner’s sentence as ex post facto violations, including the ‘central charge’ around which prosecutors built their case,” and the Supreme Court “issued a series of decisions … that cast significant doubt on the manner military commissions were convened and administered at the time of [al-Bahlul’s] trial.”

Al-Bahlul’s solitary confinement

As the lawyers also explained, the government “excluded convicts,” such as al-Bahlul, “from the parole system [the Periodic Review Boards] it ultimately created for Guantánamo detainees and ultimately prosecuted so few Low-Value Detainees that [al-Bahlul] has been and will continue to be held in near total solitary confinement.”

Following up, the lawyers stated that al-Bahlul “is serving a sentence of life without parole in solitary confinement,” describing that as “a punishment whose severity no one anticipated at the time of his trial and that is based upon legal premises that have long since been rejected or abandoned.” As a result, they asked the court “to vacate the judgment … or, at a minimum, remand for resentencing because there is no good faith legal basis to sustain such an extreme result on the record in this case.”

In the whole of this 14-year period, the only time when al-Bahlul had any limited company, during breaks together in the recreation yard, was when three other prisoners who had accepted plea deals in their military commission proceedings — the former child prisoner Omar Khadr, and Ibrahim al-Qosi and Noor Uthman Muhammed, from Sudan — were held in the same block in Camp V, known as “Convicts’ Corridor,” although when they were released — al-Qosi in July 2012, Khadr in September 2012, and Noor Uthman Muhammed in December 2013 — al-Bahlul ended up completely alone.

In an email exchange, Michel Paradis told me that, briefly in 2019, “fearing the courts might do something,” JTF-GTMO, the military command in charge of Guantánamo, “came up with a last minute ‘accommodation’ where he could get visitors from other cell blocks during the day.”

“But then,” Paradis explained, “COVID happened and that policy was also discontinued.”

In addition, although two other men have accepted plea deals— Majid Khan in 2012, and Abd al-Hadi al-Iraqi in June this year — they are “high-value detainees,” and, as Paradis explained, “one of the pernicious reasons for Bahlul being in solitary is that he is a Low Value Detainee, meaning he is kept segregated from the HVDs.”

The latest appeal

In the latest appeal, al-Bahlul’s lawyers tackle a number of important topics, although it remains to be seen if the court accepts them.

Firstly, they argue that the Convening Authority for the commissions, whose decisions are held as “unreviewable,” was not qualified to hold an “unreviewable” role, because, in an earlier ruling, the appeals court held that the Convening Authority was “an inferior officer,” whereas, as the Supreme Court ruled in a case in 2020, United States v. Arthrex, “only Senate-confirmed presidential appointees may be delegated ‘the power to render a final decision on behalf of the United States’ without any such review by their nominal superior or any other principal officer in the Executive Branch.” As a result, the lawyers state, “the judgment must be vacated for lack of jurisdiction.”

Secondly, the lawyers argue that, “Among the most important changes that Congress made to the military commission system in 2009 [when it was revived under President Obama] was to forbid the use of an accused’s involuntary statements for any purpose.” In al-Bahlul’s case, however, the government “did not dispute that the custodial statements that made most of the evidence at [his] trial and in the CMCR’s decision reaffirming his sentence could not meet this standard.”

“Indeed,” the lawyers add, “prosecutors involved in [al-Bahlul’s] case at its inception internally objected to the fact that the case against him was tainted by torture and the ‘systematic destruction of statements’ that were exculpatory.” As a result, “The CMCR’s reliance on these uncorroborated and involuntary statements, taken alone, compels reversal and warrants resentencing to ensure Petitioner is not serving life without parole based upon tainted evidence.”

On a third point, involving sentencing, the lawyers argue that, “Because this Court vacated two of the three offenses underlying [al-Bahlul’s] conviction on constitutional grounds, resentencing is required unless the record makes clear beyond-a-reasonable-doubt that the impact of the two wrongful convictions were so immaterial to the sentence imposed … that the error was harmless.”

As they also contend, the CMCR “committed at least two errors” in citing previous cases of relevance, firstly because the court “failed to find that it could ‘reliably determine what sentence would have been imposed at the trial level if the error had not occurred’ beyond-a-reasonable-doubt,” which was “a per se abuse of discretion warranting reversal,” and, secondly, because there was no basis for the appeals court to conclude, as it did, that “the CMCR has such ‘extensive experience with the level of sentences imposed for [conspiracy] offenses under various circumstances’ that it could reliably determine what sentence the members would have imposed based upon the record alone.”

As the lawyers add, “No court, let alone the CMCR, could reliably determine what sentence members would have imposed for a charge that had never been successfully tried before, based upon the record of a trial whose ‘central charge’ was vacated and conducted in a novel criminal justice system that has yielded seven sentencing decisions in its history, only three of which the CMCR has reviewed on the merits.”

The lawyers’ final point follows the above, as they note that, “Even assuming the CMCR could reliably determine beyond-a-reasonable-doubt what sentence the members would have imposed for inchoate conspiracy alone, it abused its discretion in holding that the members would have imposed life without parole based upon the record in this case”; firstly, because “the facts the CMCR determined to be most aggravating in favor of such a sentence were all based upon [al-Bahlul’s] uncorroborated statements, which are incapable as a matter of law of establishing any fact beyond-a-reasonable-doubt”; secondly, because “the CMCR drew materially incorrect inferences from the record to find that Petitioner played a role in the September 11th attacks”; and, thirdly, because “the CMCR’s resort to legal and factual theories never presented to the members demonstrates that [al-Bahlul’s] unlawful prosecution on two of the three charges that underlay his sentence, including the ‘central charge’ around which prosecutors built their actual case, was not harmless beyond-a-reasonable-doubt.”

This is not justice

It’s taken me some time to comprehend the various twists and turns of the al-Bahlul case, but it seems clear to me that his lawyers are absolutely correct to demand that, legally, the judgment should be vacated, or, at least, remanded for resentencing. A life sentence simply doesn’t seem justifiable when so little of the basis of his initial conviction survives, and when, as his lawyers explain, “prosecutors involved in [his] case at its inception internally objected to the fact that the case against him was tainted by torture and the ‘systematic destruction of statements’ that were exculpatory.”

In their lengthy submission to the court, the lawyers expand on these points, specifically noting that, “In March 2004, a military prosecutor working on [al-Bahlul’s] case internally objected that he had reviewed interrogation records in which [he] denied being a member of Al Qaeda, and that there was ‘reason to believe that [he] had suffered … mistreatment or torture.” He further alleged that prosecutors’ selection of interrogation records as evidence against [him] was ‘deliberate and misleading,’ and compromised by the ‘systematic destruction of statements of the detainees.’ Another military prosecutor further protested that [the US government] was ignoring these issues and, as a result, ‘pressing ahead with cases that would be marginal even if properly prepared.’”

The lawyers also note that, although al-Bahlul was dressed up as a media propagandist and bin Laden’s “personal secretary,” a prosecutor in his case “publicly described him as a ‘Little Fish.’”

Morally, I hope my article has shone a light on another truth, one that is rather more straightforward: that the US government has no business holding someone for 14 years in solitary confinement at Guantánamo — and potentially for the rest of his life — not just because that is fundamentally wrong, but also because the only reason he is so fundamentally alone is because the system used to try him and to convict him was so new and so unfit for purpose that it has subsequently failed to convict anyone else who could join him in his cellblock.

Ali Hamza al-Bahlul is somehow surviving his seemingly endless ordeal, although I can’t imagine that the constant isolation isn’t exacting some sort of toll on him, and I can only hope that something resembling justice eventually, belatedly, comes his way.

Andy Worthington

Andy Worthington is an investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers). Worthington is the author of "The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison"

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