Raff already posted earlier about some of the amicus briefs filed today (or earlier) in the al-Bahlul case (the "other" military commission appeal currently pending in the D.C. Circuit). I just wanted to add to the conversation this brief of the National Institute for Military Justice as amicus curiae, filed this afternoon, which I co-authored along with Agnieszka Fryszman from Cohen Milstein.
The NIMJ brief is largely a response to the Article III issues provoked by the government's merits brief in Hamdan. (Indeed, the arguments made in the NIMJ brief should have equal force in both cases; there just isn't an avenue for formally filing an amicus brief after the government's merits brief.) The government's Hamdan brief shifted its defense of the constitutionality of military jurisdiction from the view that prevailed in the lower courts (that material support is a recognized violation of the international laws of war) to the argument that, even if material support is not a recognized violation of customary international law, Congress has the power to proscribe conduct that violates the "U.S. common law of war."
In reply, our brief makes three basic points:
- Military jurisdiction in a particular case requires both that Congress have the power to define the relevant offenses and that an exception to the jury-trial protections of Article III and the Fifth and Sixth Amendment applies.
- The only exceptions to the jury-trial protections the Supreme Court has recognized are for "cases arising in the land and naval forces" and for offenses committed by enemy belligerents against the international laws of war.
- Whether or not Congress has the Article I authority to proscribe violations of the "U.S. common law of war," the government's concession in Hamdan that material support is not recognized as a violation of customary international law forecloses applicability of either of the jury-trial exceptions previously recognized by the Supreme Court.
We'll see how this argument plays out, whether in Hamdan (scheduled for argument on May 3), or al-Bahlul (which will be argued in September).