[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School. He co-authored an amicus brief in D.C. Circuit on behalf of civil rights organizations in Hamdan v United States (Hamdan II).]
On September 30, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, will hear oral argument in the case of Guantanamo detainee and alleged al Qaeda propagandist, Ali Hamza Ahmad Suliman al Bahlul. Earlier this year, a D.C. Circuit panel invalidated al Bahlul’s conviction by a military commission for conspiracy and related charges because those offenses did not violate the international law of war when committed. The ruling in Al Bahlul followed logically from the D.C. Circuit’s previous ruling in Hamdan v. United States (Hamdan II), reversing the defendant’s conviction and holding that jurisdiction under the Military Commissions Act of 2006 (2006 MCA) is limited to violations of international law for conduct that pre-dates the statute.
Al Bahlul presents the important question of whether the U.S. may try in a military commission offenses such as conspiracy and material support for terrorism (MST) that do not violate international law. The U.S. government’s argument is predicated on the assumption that the jurisdiction of military commissions extends also to violations of a separate (domestic) U.S. common law of war. The principal focus
in Al Bahlul will be on statutory and constitutional issues—more specifically, whether the 2006 MCA authorizes the prosecution of pre-2006 conduct that does not violate international law and, if so, whether the statute violates the Ex Post Facto Clause, the Define and Punish Clause, and/or the civilian criminal jury trial guarantee under Article III and the Fifth and Sixth Amendments.
It is important, however, to consider some other implications of the U.S. government’s argument for commission jurisdiction based on a domestic common law of war.
