Al Bahlul

Yesterday, Ali Hamza Al Bahlul filed his reply brief on cert in Bahlul v. U.S., which challenges the retroactive designation of conspiracy as a war crime in military commissions. Here's the brief:

Counsel for Ali Hamza Suliman al Bahlul have filed a petition for a writ of certiorari with the Supreme Court appealing the October 2016 ruling by the U.S. Circuit Court of the District of Columbia.

A summary overview of the recent DC Circuit decision in Al Bahlul.

Lawfare's Alex Loomis has a fascinating new paper up on SSRN about the scope of Congress's Article I power to "define and punish . . . Offences against the Law of Nations." But it's important to stress what Alex's article does not answer: Although Jack has suggested that Alex's analysis is relevant to the ongoing D.C. Circuit litigation in Al Bahlul over the constitutional powerof Guantánamo military commissions to try offenses like inchoate conspiracy, it goes only to the Article I question presented therein--whether Congress has the power to define inchoate conspiracy as an offense against the law of nations, as it has done in 10 U.S.C. § 950t(29). A wholly separate question--which Alex's paper does not seek to answer (see, e.g., footnote 357)--is whether Article III nevertheless prohibits a military, as opposed to civilian, court from trying the offense. As this post explains, there are compelling reasons why Congress should receive less deference in that context.