Run-up to al Bahlul argument

Prof. David Glazier

Loyola Law School's Prof. David Glazier has posted this incisive commentary on the Just Security blog about the upcoming al Bahlul case in the U.S. Court of Appeals for the District of Columbia Circuit. He argues, persuasively, that the U.S. cannot rest a military commission prosecution for conspiracy on domestic precedents rather than the international law of armed conflict. His attention-grabbing conclusion:

"If the United States now decides that it can hold foreign personnel accountable for violating “domestic” law of war rules, other states will be entitled to assert the same authority. Consider the consequences for US personnel captured in a potential future conflict with Iran or China. Are we willing to concede Iran has the ability to try, and even potentially execute, captured Americans based on its ability to find examples of past military punishments in 2,500 years of Persian history? Even more dauntingly, China has more than 4,000 years of historical practice to fall back on. The principle of estoppel would logically bar US objection to such trials. As a matter of both law and respect for our own military personnel, then, this Court should adhere to clear precedent limiting law of war tribunals to prosecuting violations of the international law of war and reverse al Bahlul’s conviction. There is no jurisdictional bar (nor practical risk of double jeopardy) that would prevent the government from charging him with ordinary federal terrorism crimes which have disparate elements from the charges he faced at Guantánamo."

The en banc Court of Appeals will hear al Bahlul again next week. Regardless of which side prevails, the case is a good candidate for discretionary review by the Supreme Court of the United States.