The al Bahlul Oral Argument Semianniversary

Today, April 22, marks the six-month anniversary of the oral argument before the D.C. Circuit in al Bahlul v. United States, by far the most significant constitutional challenge (Hamdan v. Rumsfeld was a statutory challenge) to the jurisdiction of the Guantánamo military commissions. As I’ve suggested before, regardless of how the three-judge panel rules in al Bahlul, it has a pretty good shot at getting the Supreme Court’s attention. For that reason, among a host of others, each week that passes without a decision is that much more vexing–and does nothing to resolve the uncertainty that continues to cloud the current (and potential future) state of the military commissions. In Bahlul’s case specifically, it’s worth reiterating that Bahlul was convicted in 2008, and that this challenge–his direct appeal of his conviction–is still pending in the D.C. Circuit nearly seven years later.

Add to the semianniversary of the al Bahlul argument last Friday’s incisive tweet from Carol Rosenberg noting the (not-widely-publicized) decision to suspend all proceedings in the al Nashiri trial (to await resolution of the pending appeals in the Court of Military Commission Review and the D.C. Circuit):

In February, I wrote about the statement by General Mark Martins, the commissions’ Chief Prosecutor, who responds to criticisms of the commissions by asserting that “they are a resilient part of our justice and counterterror institutions.” Whatever one thinks about General Martins’ assessment of the commissions’ historical record, they sure can’t be resilient so long as they’re doing nothing. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).