Latest in Al Bahlul
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:
The brief was submitted to the D.C. Circuit yesterday, by the Guantanamo detainee's lawyers. We thus await decision from the appeals court as to whether it will order en banc rehearing in this long-running military commissions case.
It almost certainly won't, in my view—but we'll see soon enough.
In a characteristically thoughtful post, my friend (and, in his words, "long-time sparring partner") Charlie Dunlap takes me to task for some of my comments in last week's Lawfare podcast with regard to the D.C.
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. USA.
As I explained on Sunday, one way to understand the diffference between the majority and dissenting opinions in last Friday's D.C. Circuit decision in al Bahlul v. United States is as reflecting two different methodological approaches to the question of whether Congress can empower non-Article III military commissions to try "domestic" offenses like inchoate conspiracy.
At their simplest, both Judge Henderson's 85-page dissent from the D.C. Circuit's decision in al Bahlul v.
Friday’s D.C. Circuit decision on military commissions, Al Bahlul v. United States, rests on a narrow, grudging reading of Congress’s war powers.
By now you know: Wednesday morning saw oral argument in Al Bahlul v. United States---the first since the D.C. Circuit's en banc decision, and the matter's remand to a three judge panel consisting of Circuit Judges Judith Rogers, David Tatel, and Karen LeCraft Henderson. On Wednesday afternoon, I sat down for post-argument analysis of the long-running military commissions case with Lawfare's Steve Vladeck, and Kevin Jon Heller of Opinio Juris.
Some may wish that Ex Parte Quirin, the Supreme Court’s case upholding the military commission convictions of Nazi saboteurs would recede into history. However, as Steve has noted, the oral argument in the D.C. Circuit Wednesday in Al Bahlul v. United States suggested that Quirin is very much alive. The D.C.
For the two people still following the exchange between me and Peter Margulies over the bottom-side briefing in the al Bahlul D.C.