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.
Latest in Al-Bahlul v. United States
The D.C. Circuit’s En Banc Decision in Bahlul: Sui Generis or Guidance for Future Military Commissions?
The en banc D.C. Circuit’s affirmance of the military commission conviction of Ali Hamza al Bahlul for conspiracy solidifies the legitimacy of commissions in U.S. counterterrorism law and policy.
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.
The brief was submitted to the D.C. Circuit yesterday, by the Guantanamo detainee's lawyers.
The government's (second) rehearing petition apparently was filed today in this long-running military commissions case. Offhand, it's not clear to me how the government can prevail---but we'll see.
I take issue with two recent critiques of the Guantanamo military commissions, both arising from a D.C. Circuit panel’s reversal, earlier this month, of the conviction by military commission of Ali al-Bahlul (an al Qaeda jihadist and detainee who had served in bin Laden’s inner circle) for conspiracy to commit war crimes. The first is a sneering New York Times editorial, published on June 18; the second consists of remarks made last week, on the Lawfare Podcast.
On this week’s Lawfare Podcast, Managing Editor Wells Bennett invited Steve Vladeck of both Lawfare and Just Security, and Adam Thurschwell, an attorney with the Office of the Chief Defense Counsel of the Military Commissions, into the Lawfare studio to discuss the D.C. Circuit’s decision in Al Bahlul v. United States. In its ruling, the Court vacated Ali Hamza Suliman al Bahlul’s conviction for inchoate conspiracy—a purely domestic law offense—because Article III of the Constitution permits trial by military commission of offenses against the international laws of war only. The show takes a deep dive into the case and the Court’s opinion, ponders the future of the military commissions, and outlines what we can expect the government to do next in the case.
In part, the majority and dissenting opinions in al Bahlul v. United States reflect two different methodological approaches to the central question, formal or functional. But al Bahlul doesn't simply turn on whether one applies one or the other approach. So even as the majority correctly resorted to formalism in resolving al Bahlul's Article III challenge to his conspiracy conviction, properly applied, the Supreme Court's more functional approach ought to have produced the same result.
Both Judge Henderson's dissent in al Bahlul and Peter Margulies's post criticizing the al Bahlul majority assume that courts should take a functional approach to the permissible scope of the jurisdiction of non-Article III military courts--and therefore balance a series of prudential factors in determining when military courts should be allowed to try offenses or offenders not previously subject to military jurisdiction. In this post, I explain why, at a fundamental level, formalism, and not functionalism, is the appropriate analytical mode--and, therefore, why both Judge Henderson's dissent and Peter's critique miss the mark. If anything, the biggest flaw in Judge Rogers' majority opinion is its failure to do more to explain why a formalistic approach is called for in this context. This post aims to fill that gap.