Detention: Law of: D.C. Circuit Development

Bahlul Submits Petition for Hearing En Banc in D.C. Circuit

By Raffaela Wakeman
Thursday, April 26, 2012, 9:17 PM

A few weeks back we noted that Ali Hamza Ahmad al Bahlul filed his petitioner brief in the D.C. Circuit Court in his appeal from the military commission's judgment and sentence against him. Now comes his petition for the D.C. Circuit Court to hear his appeal initially in en banc.

Counsel for Bahlul directs his focus on the difference between Bahlul's case and that of Hamdan, who is the other detainee appealing his military commission judgment and sentence:

The central issue in Mr. Bahlul’s appeal is whether a military commission  convened in Guantanamo Bay can be given jurisdiction over charges of inchoate  conspiracy, inchoate solicitation and the 2339B variant of material support for  terrorism. In Hamdan, the petitioner asks whether a military commission convened in Guantanamo Bay can be given jurisdiction over both the 2339A and 2339B variants of material support for terrorism. Together, this Court has been presented  with three different and conflicting arguments respecting the lawful scope of the  Military Commissions Act.


Mr. Bahlul, by way of contrast to both the petitioner in Hamdan and the  government, only raises constitutional grounds in the alternative to what he  submits are adequate statutory grounds that avoid the resolution of any  constitutional claim. See, e.g., Brief for Petitioner at 12-13, 15, 38-41, Bahlul v.  United States (D.C. Cir. 2011) (No. 11-1324) (“Pet. Brief”).


Mr. Bahlul therefore does not ask this Court to find that the statute is  unconstitutional in all its applications. See, e.g., Pet. Brief at 14-15, 34-37, 41. In contrast to Mr. Hamdan, Mr. Bahlul is willing to concede that certain non-warcrimes could be lawfully tried by a 47A commission convened by a military commander in an area of ongoing combat operations or military government. Here,  by contrast, the convening authority was a civil servant with no command authority  over any battlespace. Mr. Bahlul’s asserted claim for relief is therefore only that  this particular convening authority acted ultra vires in diverting the prosecution of  these particular statutory offenses, which the government concedes are not war crimes, to a law-of-war commission convened in Guantanamo Bay. See, e.g., Pet.  Brief at 34-36.

Counsel argues that the initial hearing should be en banc, despite the uniqueness of granting that petition:

While Mr. Bahlul recognizes that it is highly unusual to request hearing en banc prior to a three-judge panel ruling on the merits, he submits that doing so would serve the interests of judicial economy. Indeed, given the parallel postures of the Hamdan and Bahlul appeals, their common issues risk presenting a situation similar to what this Court confronted in Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir 1988). There, two separate panels were reaching “separate, conflicting opinions regarding the availability of Bivens remedies to litigants challenging federal personnel actions.” Id. at 225. “Rather than allow a race to the printshop to determine circuit precedent – a procedure that would be quite destructive of collegiality – the court followed the sensible path of allowing both decisions to issue on the same day and then granting the inevitable suggestions for rehearing en banc.” Ginsburg & Falk at 1024. This Court’s grant of an en banc hearing would therefore serve judicial economy by pre-empting conflicting panel decisions on cases raising novel issues of exceptional importance. See, e.g., Cafeteria & Restaurant Workers Union v. McElroy, 284 F.2d 173, 193 (D.C. Cir. 1960) (Fahy, J., dissenting) (“[H]ad a request for en banc hearing of this case been made before the [panel] heard it, or even before the [panel] decided it, such a hearing might reasonably have been granted because of the obvious importance of the case.”).

Referring to the importance that both the President and Congress have placed on the use of military commissions to try alleged terrorists, Bahlul's counsel says:

The  Military Commissions Act was described by President Bush as “one of the most  important pieces of legislation in the war on terror.” Remarks on Signing the  Military Commissions Act of 2006, 42 Wkly. Comp. Pres. Doc. 1831 (Oct. 23,  2006). Congress has closely supervised the proceedings under the Act so far and  has amended the Act at least twice in the five years since it was enacted,  sometimes in direct response to issues raised during commission proceedings. See,  e.g., National Defense Appropriations Act for Fiscal Year 2010, Pub. L. 111-84 §§  1801, et seq. (2009); National Defense Appropriations Act for Fiscal Year 2012, Pub. L. 112-81 §§ 1030, 1034 (2011). The government is currently pursuing conspiracy charges against six defendants before 47A commissions in which the  death penalty is being sought. These cases include the trial of the alleged planners  of the September 11th attacks.

Earlier, the government had argued in favor of dismissing Bahlul’s appeal, but the 3-judge panel ruled against the motion back in February. Ben covered the back-and-forth here and here, and we covered the CMCR’s ruling hereherehere, and here. Oral argument hasn’t yet been scheduled.