Al Bahlul to be heard en banc tomorrow

Thus, before considering whether to expand the reach of military commissions to encompass prosecution of offenses not recognized as war crimes, it is worth taking a step back to consider not just whether such a step is constitutional, but also what practical considerations support doing so. As Judge [David] Tatel argues in his concurring opinion in Al Bahlul III, declining to expand the jurisdiction of military commissions beyond prosecuting violations of the law of war does not prevent the government from ensuring that those who conspire to commit terrorism are appropriately punished. As Tatel notes and our report demonstrates, “the government can always fall back on the apparatus it has used to try federal crimes for more than two centuries: the federal courts.”

James Benjamin and Rita Siemion, writing here, at Just Security