Saturday, September 26, 2015

Al Bahlul case to be heard en banc

Yesterday the U.S. Court of Appeals for the District of Columbia Circuit granted rehearing en banc of the panel decision in the long-running military commission case of Al Bahlul v. United States.  Here is the part of the court's order that specifies additional issues to be briefed:
(1) The standard of appellate review of Bahlul’s conviction for conspiracy to commit war crimes. See, e.g., Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932 (2015); CFTC v. Schor, 478 U.S. 833 (1986); and

(2) Whether the Define and Punish Clause of Article I of the Constitution gives Congress power to define as an Offense against the Law of Nations -- triable before a law-of-war military commission -- a conspiracy to commit an Offense against the Law of Nations, to wit, a conspiracy to commit war crimes; and whether the exercise of such power transgresses Article III of the Constitution.
Global Military Justice Reform contributor Prof. Steve Vladeck commented briefly on the order here, on Just Security.

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