Military Justice

DOJ Seeks Rehearing En Banc in Bahlul to Overturn Hamdan II

By Steve Vladeck
Tuesday, March 5, 2013, 6:34 PM

Back in January, we devoted a fair amount of attention to the DOJ Supplemental Brief in the al-Bahlul military commission appeal--and the rather significant internal debate within the Administration about whether to accept the D.C. Circuit's ruling in Hamdan II, or to seek to overturn it either by pursuing rehearing en banc in Bahlul (which is arguably a better case for the government than Hamdan is), or by seeking the Supreme Court's intervention. Given that the government conceded that the panel decision in Hamdan II compelled a similar result in Bahlul, the panel decision that followed was hardly surprising.

Late this afternoon, the government filed this petition for rehearing en banc in Bahlul, which launches a full frontal assault on Hamdan II, arguing that it (1) misconstrued the Military Commissions Act of 2006; (2) and misconstrued Article 21 of the UCMJ--along much the same line as the government's supplemental brief in Bahlul had already hinted...

I hope to have more to say on the merits of the brief tomorrow. In the interim, though, it seems worth pointing out just how unlikely it is that the government will succeed in convincing the D.C. Circuit (which seldom goes en banc) to go en banc here.  There are currently seven active judges--Garland, Henderson, Rogers, Tatel, Brown, Kavanaugh, and Griffith. Given that Judge Kavanaugh wrote the opinion in Hamdan II, it's not at all obvious to me where the government finds four votes for en banc rehearing.

Of course, the government can count too, and so this might just be one more way of postponing the increasingly inevitable decision of whether to seek the Supreme Court's attention...