As Steve noted on Tuesday, the government petitioned for rehearing in the military commission case of United States v. Al-Bahlul, asking the full D.C. Circuit to overturn: (1) a three-judge panel’s holding, in Hamdan II, that commissions lack jurisdiction to try, as regards pre-2006 conduct, material support for terrorism; and (2) another panel’s invalidation of Al-Bahlul’s conviction for standalone conspiracy. The U.S. acknowledges that neither crime was recognized under the international laws of war at the time of the accuseds’ actions, but nevertheless argues that both were recognized under the “U.S. common law of war”—and therefore also were (and are) commission-triable. (See this post by Steve outlining the government’s argument in its supplemental brief in Al-Bahlul).
Under the Circuit Court’s rules, Bahlul’s lawyers could not have responded unless the Circuit Court asked for that. Absent such a request, the Circuit Court would have gone ahead and denied en banc review. Thus, Friday’s order gave the government at least some reason to think that it might succeed in getting another round at the Circuit Court. (Bahlul’s response is due in fifteen days.)
If the full court accepts the case for review, that will nullify the three-judge panel ruling against Bahlul’s convictions. But at the center of this controversy is a different three-judge panel’s ruling, issued last October, limiting military commission authority. That is the decision that the administration most wants to overturn, and its Tuesday filing amounted to an all-out legal assault on that ruling.
Given the composition of the en banc court, the chances that the government will prevail there seem limited at best. In any event, the dispute is ultimately expected to reach the Supreme Court.