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No USG Appeal in Hamdan; Stay Tuned for al-Bahlul

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Friday, January 18, 2013 at 11:22 PM

We end the evening with this procedural nugget from Jess Bravin of the Wall Street Journal: in Hamdan II, the deadline for the United States to seek en banc review from the D.C. Circuit, or a writ of certiorari from the Supreme Court, came and went.  The last day for further court challenge in that case, by Bravin’s count, was Monday.

The development doesn’t harm the United States’ evident strategy.  You’ll recall that, in supplementary briefing, the Justice Department had conceded that Hamdan II essentially spelled doom for the government in a closely related case, al-Bahlul.  Thus DOJ asked the court of appeals immediately to enter judgment reversing al-Bahlul’s conviction for conspiracy, so as to permit the government quickly to petition for rehearing by the full court of appeals or, potentially, for review by the Supreme Court.   (Hamdan had been acquitted of conspiracy but convicted of material support; al-Bahlul, however, was convicted of both offenses and of solicitation to boot.)

That hasn’t just happened yet, but, when it does—and again, assuming the D.C. Circuit invalidates al-Bahlul’s convictions—the United States promptly will urge either the full D.C. Circuit or the Supreme Court to approve both material support and conspiracy as valid commission offenses, with respect to pre-2006 conduct.  Thus there’s still a clear path to additional litigation, the lapsed deadline in Hamdan II notwithstanding.

Of course, none of this is to suggest that the government will prevail during rehearing en banc, or before the Supreme Court: it almost certainly won’t, for reasons now well known to the Lawfare faithful.

A humdinger day for the military commissions, in any case . . .