In oral argument Monday, Ian Gershengorn, the principle deputy solicitor general, said the ruling, if it stands, could make it almost impossible to try some Guantanamo detainees accused of planning the Sept. 11, 2001, terrorist attacks, Courthouse News Service reported. That's because many of the suspected plotters are only charged with conspiracy.
The D.C. Circuit agreed to a hearing by the full court, known as an en banc hearing. Earlier this year, a three-judge panel dismissed charges against Ali Hamza Ahmad Suliman al-Bahlul, who had been convicted of conspiracy and material support for terrorism in 2008.
A 90-minute propaganda video of bin Laden made by Bahlul was the basis of the charges.
Michel Paradis, representing Bahlul, said the government has to do more than prove his client is a "bad guy" with abhorrent ideas.
"Laws aren't moral sentiments," he said. "They are crimes."
Gershengorn told the court that lawyers for the accused terror plotters have cited the D.C. Circuit ruling in efforts to get charges against their clients dropped. U.S. Circuit Judge Brett Kavanaugh, who wrote a critical decision, said their indictment is a lengthy document that includes a lot more than conspiracy charges.