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.
Latest in Terrorism Trials: Military Commissions
This morning, a three-judge D.C.
The opinion for the unanimous three-judge panel was authored by Judge Karen LeCraft Henderson.
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.
On June 12, a three-judge panel of the D.C. Circuit handed down its decision in the most recent iteration of Al Bahlul v. United States, vacating defendant Ali Hamza Suliman al Bahlul’s conviction for inchoate conspiracy. Al Bahlul’s other convictions had previously been vacated by the D.C.
At their simplest, both Judge Henderson's 85-page dissent from the D.C. Circuit's decision in al Bahlul v.
I have only flipped through the three-judge panel's 2-1 ruling in this quite important military commissions case.
It seems Judges Judith Rogers (who authored today's opinion for the majority) and David Tatel concluded to overturn the Guantanamo detainee's remaining conviction on Article III grounds. Judge Tatel also writes a separate opinion, mostly to explain why he joined an earlier en banc panel upholding Al-Bahlul's conspiracy conviction; Judge Karen LeCraft Henderson dissents.
The American press has largely ignored the decision, but CBC News has the story:
Convicted war criminal Omar Khadr, the Canadian transferred to an Alberta facility after serving time at Guantanamo Bay, has been granted bail.
Everyone should read Bobby's post from last night on the potential approach of an endgame for the 122 detainees still in custody at Guantánamo.
Perhaps of interest to Lawfare readers in the Boston area: Next Tuesday, the Harvard National Security & Law Association (NSLA) will host Brigadier General Mark Martins, the chief prosecutor for military commissions and lead trial counsel in the prosecution of Khalid Sheikh Mohammed and four other accused perpetrators of the attacks of September 11, 2001, for a dinner event.
Martins will outline major provisions of the Military Commissions Act of 2009 and also address continuing concerns about delay and other challenges to the reformed system's legitimacy.