At the same time, the administration has said the earlier ruling is incorrect and intends to seek further review of the issue. The ruling also could affect conspiracy charges in the prosecution of the five men who are accused of orchestrating the Sept. 11 attacks.
The U.S. Court of Appeals for the District of Columbia Circuit said in a brief order that it is wiping away Bahlul's convictions for providing material support for terrorism and conspiracy and solicitation to commit war crimes.
Earlier this month, the administration told the court that it was necessary to throw out the al-Qaida propagandist's convictions because the court is bound by a ruling last October overturning the conviction of Osama bin Laden's former driver. The driver, Salim Ahmed Hamdan, served a prison term for material support for terrorism.
In the Hamdan case, the appeals court ruled that before enactment of the Military Commissions Act of 2006, only violations of the international law of war and pre-existing federal offenses were subject to trial by military commission. Hamdan's alleged material support for terrorism pre-dated the military commission law and was not a war crime under international law at the time Hamdan engaged in the
The government said the Hamdan decision "cannot be squared with the plain language" of the law and Congress's stated purpose in enacting it.
In the case against the Sept. 11 defendants, conspiracy is only one of the charges against them and even if it is dropped, all five could still get the death penalty. The trial is likely at least a year away.
Other charges include terrorism and nearly 3,000 counts of murder for the men' alleged roles in the planning and preparations for the Sept. 11, 2001, terrorist attacks. The men, who have been held at the U.S. naval base in Guantanamo Bay, Cuba, since September 2006, include Khalid Sheikh Mohammed, who has portrayed himself as the mastermind of the plot.