Bahlul Requests Clarification of D.C. Circuit's <i>En Banc</i> Order

As Wells and Ben wrote yesterday, the D.C. Circuit granted the government's petition for rehearing en banc in U.S. v. Bahlul. Today, the accused's counsel asked the court to clarify instructions it issued in granting en banc review. The D.C. Circuit had asked the parties to brief two questions, in addition to those raised thus far: one, for purposes of considering whether the 2006 MCA may permissibly proscribe pre-2006 conduct that was not then a war crime triable by military commission, whether the Ex Post Facto Clause applies to Guantanamo detainee cases; and two, assuming Hamdan II correctly concluded that the 2006 statute did not mean to retroactively invent new war crimes, whether conspiracy amounted to a violation of the international law of war at the time of Bahlul's alleged actions. So now defense lawyers want to know: how exactly do those marching orders work, given other issues at play in the case? From their filing:

COMES NOW, Petitioner, Ali Hamza Suliman Ahmad al Bahlul, and requests this Court clarify the scope of the briefing scheduled in its Order of April 23, 2013. The Court’s Order states “that in addition to the issues the parties raise in their en banc petition and opposition thereto, the parties are requested in their briefs to specifically address and provide their positions on [two] questions . . ..”

Petitioner’s counsel requests clarification as to whether the Court wishes Petitioner to submit a full briefing of the case, to include the equal protection and First Amendment issues raised before the panel or, in the alternative, whether Petitioner may rely on the briefs submitted to the panel for those two issues.