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); andGlobal Military Justice Reform contributor Prof. Steve Vladeck commented briefly on the order here, on Just Security.
(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.
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