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US Military Panel Hears 1st Guantanamo Appeal

Former top al-Qaida propagandist al-Bahlul sentenced to life in prison in 2008 for conspiracy, solicitation for murder, material support for terrorism

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Michael Bowman

A panel of U.S. military judges has heard the first direct appeal of a convicted detainee at Guantanamo Bay, Cuba, that of al-Qaida's former top propagandist.  Oral arguments in Washington focused on a wide range of issues including whether Guantanamo Bay detainees should face military commissions and if America's free speech guarantees apply to foreigners who take part in plots to harm the United States.

Held at Guantanamo Bay, Cuba for eight years, Ali al-Bahlul's fate is in the hands of a U.S. military appellate commission that convened at a federal court less than a block from the White House.  A three-judge panel heard one hour of arguments for and against the al-Qaida propagandist for Osama bin Laden.

Al-Bahlul was convicted of war crimes and sentenced to life imprisonment in 2008.

At issue is whether videos and other pro-al-Qaida material al-Bahlul produced to recruit and inspire anti-American jihadists constitute free speech that is protected by the First Amendment to the U.S. Constitution.

Defense attorney Mike Berrigan says yes.  He spoke with reporters after the hearing, which featured references to a two-hour al-Bahlul video, "The State of the Ummah," or Muslim people.

"Mr. Bahlul's conduct in making this documentary -- his prosecution for that conduct -- was a violation of the U.S. First Amendment.  Not that Mr. al-Bahlul had particular First Amendment rights, but that the constitutional restrictions on the U.S. government prosecuting someone for speech made the prosecution itself illegal.  Mr. al-Bahlul's conduct in making that documentary does not come close to the standard of inciting violence that can be criminalized," Berrigan said.

Not so, according to Navy Captain Edward White, who argued the U.S. government's case at the appeal.

"Our position was that, as an enemy combatant waging war against the United States from abroad, he does not have First Amendment rights [to free speech].  He crossed the line into criminally, soliciting other people -- inducing, enticing, encouraging, persuading them -- to commit war crimes," White said.

Oral arguments at the appeal also focused on whether charges initially brought against al-Bahlul constituted war offenses and whether he should have been tried in a U.S. military justice setting.  In addition, attorneys argued over whether al-Bahlul had been subjected to retroactive justice --  specifically, whether charges brought against him were elevated to criminal status after he was in U.S. custody.

The defense hopes the military commission review will strike down al-Bahlul's conviction.  But lawyers for both sides say that regardless of the outcome of the appeal, al-Bahlul is not likely to be released from Guantanamo Bay anytime soon.

Once again, Captain White:

"I do not believe there is any scenario under which this court's decision would ultimately result in the appellant's release.  In so far as he is detained as an unprivileged enemy belligerent under the laws of war, that would be a separate decision for other authorities to make," White said.

Hours later, another appeal was heard -- for the conviction of Osama bin Laden's personal driver, Salim Ahmed Hamdan, who was transferred to Yemen in 2008 and released there last year.

The court did not specify when it planned to rule on either al-Bahlul's or Hamdan's appeal.

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