Two Issues to Be Briefed and Argued to the En Banc Court of Military Commission Review in the al-Bahlul Case

By Robert Chesney
Tuesday, January 25, 2011, 3:56 PM

This morning the CMCR issued an order calling for fresh briefing and argument in the al-Bahlul appeal, but not in Hamdan (or so I'm told; we'll see, I guess).  Here is the text of the order:

Upon consideration of the record of trial and pleadings of the parties and amicus curiae, the following issues are specified and oral argument is ordered:

I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that "joint criminal enterprise" is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the "joint criminal enterprise" theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006). See Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).

II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation?

ORDERED, that the Appellant’s brief on the specified issues is due on February 24, 2011 and the Appellee's brief on the specified issues is due on March 11, 2011.

Oral argument on the specified issues will be heard at 10:00 A.M. Eastern Time on March 17, 2011, in Courtroom 201, United States Court of Appeals for the Federal Circuit, 717 Madison Place, NW, Washington, DC.

This will be interesting, to say the least!  If you have views on either set of issues, and would like us to post a relatively short synopsis of them, please email me with your thoughts.  I do not promise to post everything I get, but I'm inclined to do so.