IT'S DISORIENTING to sit across from a pair of bright, bespectacled military attorneys a metro stop away from the Pentagon talking about freeing a convicted terrorist from a life sentence. Discussions about "fundamental rights" extending to noncitizens, government overreach in the War on Terror, and the slippery slope of the Military Commissions Act--this was more like interviewing ACLU lawyers, long-haired, indignant, and ready to be jailed defending their client.
But here were two clean-cut Catholic guys who claim they are inspired by the perspicacity of the Founding Fathers and a rule of law stronger than any post-9/11 race to rid the world of Islamist evildoers. They say their current case has as much to do with the rights of American citizens as it does with one long-term resident of Guantanamo Bay.
Army Major Todd Pierce, a Judge Advocate General reservist, and Michel Paradis, a civilian lawyer, serve on a team for the Defense Counsel of the Court of Military Commission Review. They are helping to build the appeal for Ali Hamza al-Bahlul, an al-Qaeda media man and Osama bin Laden's personal secretary, who was convicted by a military tribunal in 2008.
His work as a propagandist--and, these attorneys suspect, his loutish behavior at trial: waving a poem praising the 9/11 attacks didn't help his cause--landed al-Bahlul the heaviest sentence of the three men successfully prosecuted under the Military Commissions Act to date. Still, they believe his conviction violated the First Amendment.
These lawyers couldn't have picked a more repellent client. Not only is al-Bahlul a noncitizen, he admits to joining al-Qaeda, swearing allegiance to bin Laden, and writing speeches for the terror mastermind. He allegedly bunked with eventual 9/11 hijackers and reportedly provided a radio receiver to bin Laden to listen to the aftermath of 9/11 via satellite. During his trial, he played with a paper airplane. He vows to continue the fight.
This appears to be an open-and-shut case, but defense attorneys point out that prosecutors could never tie al-Bahlul--who was captured and first indicted in 2004--to a single violent act against coalition forces. Nevertheless, he was charged with conspiracy, material support for terrorism, and solicitation to commit murder.
Defense attorneys have zeroed in on the solicitation charge, saying it hinged on a single recruitment video al-Bahlul produced, "State of the Ummah." They argue that it was never proved that the video was anything more than an abomination to its American viewers, at least the ones who were brought in to testify during al-Bahlul's sentencing. The prosecution offered no evidence that the video called for, or resulted in, a specific act of murder.
"There is little doubt that Mr. Al Bahlul is not a sympathetic defendant," read the written appeal, filed with the Military Commission Review last September. The solicitation charge, however, "conflates offensive behavior with criminal behavior. As offensive as it may be, State of the Ummah is speech that falls within the core protections of the First Amendment."
If this isn't acknowledged, the defense claims, the U.S. government could very well round up any foreigner in the Global War on Terror--for the battlefield is indeed global--and prosecute him for things he has said, written, or produced. If it stands, the appeal states, the conviction of al-Bahlul on solicitation charges could even pave the way for domestic politicians to start suing foreign journalists for libel. It would create a "chilling effect" on Americans' access to foreign information, including political propaganda, which is currently protected by lower court rulings.
Al-Bahlul's film "provides a valuable window into the anxieties and grievances of a substantial number of Muslims inside and outside the United States," the defense wrote. Critics tell TAC that censoring the propaganda's creator makes the U. …