Petitoner's En Banc Brief Filed in Al-Bahlul
Here it is. Filed with the brief were two appendices, the first of which is here.
Published by The Lawfare Institute
in Cooperation With
Here it is. Filed with the brief were two appendices, the first of which is here. (The second exceeded our humble site's maximum upload size.) Background on Ali Hamza Ahmad Suliman Al-Bahlul's appeal can be found on the case's Wiki page.
The brief's "Summary of Argument" section says:
This case deals with the retroactive application of a criminal law. The 2006 Act was passed five years after Bahlul was taken into custody. A military commission convicted him for offenses the act proscribed on the basis of allegations that predated its enactment by as many as seven years. The resolution of this case turns on a single question. Were the war crimes for which Bahlul was convicted – to wit, conspiracy, solicitation, and material support for terrorism – war crimes when he is alleged to have committed them? A vast and unambiguous body of jurisprudence, state practice, and scholarship on international humanitarian law says they were not. The overwhelming majority of historical sources say they were not. And the government concedes they were not. Consequently, the answer to the question at the center of this case is no. Whatever basis Bahlul’s pre-arrest conduct might give the government to detain him under its war powers, and whatever basis it might give the government to pursue a grand jury indictment, the government overstepped the law in seeking to convict him as a war criminal because none of the charges it brought against him were war crimes.
Update: this post has been updated with the corrected brief.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.
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