Latest in Ali Hamza al Bahlul
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 sitting en banc.
On Thursday, October 20th, the D.C. Circuit Court of Appeals ruled once again on the case of Ali Hamza al-Bahlul, a Guantanamo detainee convicted by a military commission for inchoate conspiracy to commit war crimes. In a divided and inconclusive en banc decision, the D.C.
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 . . .
Audio of the D.C. Circuit's en banc oral argument in Al Bahlul is available here. I haven't listened to it yet. I'll offer thoughts after I do.
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.
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.