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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

SCOTUS Blog: “Congress’s War Crimes Power at Issue”

A post on SCOTUS Blog by Lyle Denniston reports that, on Tuesday, the D.C. Circuit Court voted to review congressional authority to apply war crime laws to terrorist acts that took place prior to the enactment of the laws making such acts criminal.

The decision to review arises directly from the case against Ali Hamza Ahmad Suliman al Bahlul, and indirectly from the case against Salim Ahmed Hamdan.

As described by Denniston, Bahlul was sentenced to life in prison after a military tribunal convicted him of providing material support to terrorists, conspiracy to commit terrorist acts, and soliciting others to do so. The Circuit Court “wiped out” Bahlul’s conviction based on the ruling rendered in the Hamdan case.

In the Hamdan case, the Circuit Court overturned the Yemeni national’s conviction effectively narrowing the powers of a military commission to try crimes that didn’t exist at the time the defendant engaged in the activities.

According to SCOTUS Blog, the Obama administration asked for en banc review in the Bahlul case, which was granted. The Circuit Court has asked the attorneys to prepare to argue the issues decided by the Hamdan panel in addition to the following:

  1. Whether the Ex Post Facto Clause of the United States Constitution protects Guantanamo detainees.
  2. Assuming the Hamdan panel was correct in “concluding that Congress can only make war crimes out of conduct that violated the international law of war,” whether Bahlul’s alleged conspiracy crimes were violations of international law at the time they were committed.

Denniston comments as follows on the potential legal significance of the coming hearing:

The coming decision by the seven-judge Circuit Court almost certainly will be appealed to the Supreme Court, by whoever loses at the Circuit Court, and that could lead to a major new ruling on the powers of the special military commissions that have had a troubled seven-year history at the U.S. military prison [in] Cuba.

 

The hearing has been scheduled for September 30.

 

You can read the full SCOTUS Blog post here.

Here’s a link to the Hamdan decision by Judge Kavanaugh.

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