May 31, 2017

On May 31, 2017, Jenner & Block filed two amicus briefs in the Supreme Court on behalf of the National Institute of Military Justice (NIMJ), urging the Court to settle the validity of military commissions’ jurisdiction to try domestic offenses.

The first case, al Bahlul v. United States, challenges the constitutionality of military commissions to try domestic offenses like conspiracy when the defendant’s conduct post-dated the Military Commissions Act.  Al Bahlul was convicted by a military commission of three domestic offenses, two of which were thrown out on appeal. On the third charge, conspiracy, the D.C. Circuit fractured, ultimately affirming al Bahlul’s conspiracy convictionbut without a majority rationale.  The case thus left unanswered the question of whether commissions can try purely domestic offenses.  Jenner & Block’s brief argues that the Supreme Court should hear the case so as to settle once and for all the jurisdiction of post-September 11 military commissions.

In the second case, al Nashiri v. Donald Trump, the defendant has been charged with offenses that more closely resemble international war crimes, but the question is whether the acts at issue took place during “hostilities,” which the Military Commissions Act defines as occurring in a “conflict subject to the laws of war.”  The D.C. Circuit abstained from resolving al Nashiri’s habeas petition, invoking the doctrine of Councilman abstention under which civil courts leave challenges to military trials to the military courts in the first instance.   Jenner & Block’s brief argues that Councilman abstention should not apply to military commissions, and that even in applicable, abstention is inappropriate where al Nashiri is claiming the right not to be tried at all.

The firm team, Partner Lindsay C. Harrison and Associate Tassity Johnson, argue in both briefs that it is time for the Court to settle the jurisdictional bounds of the military commissions, rather than allowing the commissions to continue to operate under a cloud of illegitimacy.