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Petitioner’s Supplemental Brief in al-Bahlul

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Tuesday, January 22, 2013 at 3:18 PM

Here ’tis.  From the supplemental brief’s “Summary of Argument” section:

We agree with the government that Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) (“Hamdan II”), compels this Court to vacate the judgment below. Resp. Supp. 2-3. The government stands by its concession that none of the charges against Bahlul are international-law war crimes. Consequently, those charges were not triable by a military commission.

We take no position on the government’s demand to dispense with oral argument. Resp. Supp. 1. Win or lose on the narrow question answered in Hamdan II, Bahlul remains in custody and may be subject to retrial. Counsel defers to this Court as to whether further argument on this issue or any of the other issues in this case would be helpful.

We disagree with the government’s retread of the arguments this Court rejected in Hamdan II. We rely on our prior briefing and this Court’s opinion, but wish to make two additional points that go to Congressional intent. First, there is no indication that Congress intended the 2006 Act to proscribe offenses retroactively. Second, there is no indication that Congress ever embraced the government’s novel “U.S. common law of war” doctrine or the breakdown in the international laws governing armed conflict that it invites.

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