The government has filed a brief opposing the cert petition in Bahlul v. United States.
Latest in Ali 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.
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.