* Al-Bahlul v. United States; Hamdan v. United States (CMCR appellant’s briefs) (Feb. 24, 2011)
On February 24th, as directed by the en banc Court of Military Commission Review, the appellants in al Bahlul and Hamdan filed briefs addressing two questions:
I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006).
II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation? ee Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).
The brief in al-Bahlul is available here. The brief in Hamdan is here. The government’s response is due on March 11th, and oral argument takes place at 11:30 am on Thursday March 17th at the Court of Appeals for the Federal Circuit. For more commentary on these briefs, including some key excerpts and also an unexpected reference to the scope of targeting and detention authority, see here.