Government Files Response in Al Bahlul v. United States

The new 96-page filing tracks the four-part structure of the petitioner's brief, and leads with the government's central argument: that Congress acted within its Article I powers in making conspiracy a crime triable by military commission. The government contends that to challenge his conspiracy conviction, Bahlul relies on the erroneous premise that the Define and Punish Clause is the only available basis for congressional codification of offenses subject to trial by military commission, when in fact Congress's authority to codify such offenses stems from its broad Article I war powers, coupled with the Necessary and Proper Clause. The government further asserts that  "longstanding practice" confirms that Congress may make non-international law offenses triable by military commission, and that this position is consistent with the reasoning of Ex parte Quirin, in which the Supreme Court looked to domestic precedents, and not merely international law, when deciding whether spying can be lawfully tried by military commission. Even if Congress's authority to codify offenses rose under the Define and Punish Clause alone, the government argues, that provision combined with the Necessary and Proper Clause allows Congress to proscribe conspiracy to commit offenses that are themselves violations of the law of nations.

Responding briefly to the petitioner's remaining arguments, the government contends: (2) Bahlul's trial by military commission for conspiracy did not violate any right to a jury trial in an Article III court, (3) Bahlul's conviction does not violate the First Amendment, and (4) the 2006 Military Commissions Act does not impermissibly discriminate against aliens in violation of the equal protection component of the Due Process Clause.

For more on the case, check out the numerous amicus briefs we flagged last month, all filed on behalf of the petitioner: by (1) the National Institute of Military Justice, (2) First Amendment Scholars and Historians and Montana Pardon Project,  (3) the Japanese American Citizens League et al., (4) Robert D. Steele and other former members of the U.S. intelligence community, and (5) Professor David Glazier.

Oral argument is scheduled for October 22, 2014.