The Justice Department filed a brief on Wednesday opposing the cert petition in Bahlul v. United States. Counsel for Ali Hamza Suliman al Bahlul filed the cert petition in March to seek review of an October 2016 D.C. Circuit decision. That ruling overturned a previous D.C.
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As Jack noted earlier this morning, Lawfare's Alex Loomis has a fascinating new paper up on SSRN (for the moment, anyway) about the scope of Congress's Article I power to "define and punish . . .
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.