The D.C. Circuit "Clarifies" Scope of <em>Bahlul</em> En Banc Rehearing

As Raff noted last week, the lawyers for the defendant-appellant in United States v. al-Bahlul--the military commission case in which the D.C. Circuit surprisingly granted rehearing en banc--had moved to "clarify" the scope of such rehearing, including whether it encompasses two constitutional challenges to Bahlul's conviction (on First Amendment and equal protection grounds, respectively) that were fully briefed to, but not decided by, the three-judge panel. Now, the D.C. Circuit has granted that motion, and responded in the negative. In a one-page order, the Court of Appeals stated that "The requested briefs should not include the two issues -- Equal Protection and First Amendment -- mentioned in the motion because neither issue is within the scope of the rehearing en banc." Two quick thoughts on this development: First, it's hogwash. En banc review is not tantamount to an appeal of the original panel decision, limited to those issues resolved by the panel; it's plenary appellate review, as if the original panel decision (which has now been vacated) never took place. So I just don't understand how "neither issue is within the scope of the rehearing en banc." As a matter of practice and principle, any un-waived ground for challenging the decision below is "within the scope" of such review. Second, perhaps this reinforces Wells and Ben's theory--the only way that "neither issue [would be] within the scope of the rehearing en banc" in practice is if the Court of Appeals never intends to get to Bahlul's specific constitutional challenges to his conviction, but rather means to focus its attention on the threshold issue on which Bahlul (and Hamdan II) were decided, i.e., the power of the commissions to try pre-2006 conspiracy and material support charges in general. Of course, if the en banc court is inclined to agree with the original panel decisions, the First Amendment and equal protection claims would be moot (but then one wonders why the court is going en banc in the first place). Stay tuned...