Military Commissions

The Saga Continues: DC Circuit Grants En Banc Review in Bahlul

By Benjamin Wittes
Monday, September 28, 2015, 8:41 AM

This I did not expect. The D.C. Circuit has granted en banc review in the latest round of Bahlul litigation. That means that June 2015 panel opinion which garnered so much discussion is now kaput.

Over at Just Security, Steve Vladeck has a good analysis. Money quote:

today’s news means that the Guantánamo military commissions are only going to be dragged out that much more, since it will now be next summer at the earliest before the D.C. Circuit rules on the merits of Bahlul’s Article III claim (never mind the other remaining constitutional challenges Bahlul has raised to his conviction that would have to be decided if the Article III claim is rejected). Playing this forward, that means that, at the earliest, the Supreme Court would consider this question during its October 2016 Term — with a decision by June 2017. And even then, given the briefing order’s focus on the standard of review, all we may get is a holding that, under plain error review, al Bahlul’s conviction did not violate Article III. That result would have zero precedential value, and so the Article III question would still be out there.

If nothing else, this case continues to be a jobs program. Stay tuned…