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Al-Bahlul’s Response to USG Petition for Rehearing En Banc

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Wednesday, March 20, 2013 at 3:02 PM

Military commission accused Ali Hamza Ahmad Sulaiman al-Bahlul has submitted his response to the government’s petition for rehearing by the full D.C. Circuit.  In January, a 3-judge panel of that court vacated al-Bahlul’s conviction for conspiracy.  The Department of Justice sought en banc rehearing earlier this month.

As Steve has explained, the government’s lawyers made three primary arguments in favor of their rehearing petition: first, that in a parallel military commission case, Hamdan II, another panel of the D.C. Circuit had misconstrued the 2006 Military Commissions Act, in concluding that the accused could not be prosecuted for material support for terrorism, with respect to pre-2006 conduct; second, that the same Hamdan II panel likewise misread Article 21 of the Uniform Code of Military Justice; and third, that the scope of the military commissions’ jurisdiction—very much at issue here—amounts to an issue of exceptional importance.

In today’s filing, al-Bahlul’s counsel bats the government’s claims away.  His response concludes thusly:

In the end, the government has failed to show why this Court’s decisions are exceptional, let alone exceptionally in error. Its arguments were fully briefed before two panels of this Court and have been unanimously rejected at every turn. Its claims of exceptional importance reduce to preserving the conviction in this case and Hamdan II’s theoretical impact on a trifling handful of legacy cases to arise out of Guantanamo Bay. If the government feels that it needs its interpretation of the 2006 Act to prevail as a policy matter, it can try and persuade the Supreme Court to overturn its precedents or Congress to re-amend the law. The government has not, however, given this Court any reason to believe that the time and resources required to rehear this case en banc will be well spent.