Legal Commentary

Apparently lost in the pre-Labor Day weekend rush on Friday was the story that the Court of Military Commission Review (CMCR) has decided to hear the appeal of Salim Hamdan's military commission conviction en banc, rather than before a three-judge panel. Although this isn't that unusual a step in the abstract, it's a bit surprising here, if for no other reason than that the appeal was argued to a three-judge panel in January--almost eight months ago. There's no obvious (public) development that would explain both (1) why the panel would feel the need to go en banc at all (indeed, it's not like there's a lot of prior precedent to bind it); and (2) why it would decide to do so now. 

The most optimistic explanation might be that the panel has come to appreciate the structural significance of the issues raised in Hamdan's appeal, especially his challenges to (1) Congress's power to make certain offenses triable by a military commission; and (2) Congress's power to apply those definitions retroactively--i.e., to conduct that pre-dated the Military Commissions Act of 2006. And whatever the answers to these questions are, there can be little doubt that their significance transcends Hamdan's case--indeed, they pervade virtually every military commission proceeding currently underway. By that logic, allowing these issues to go to the en banc CMCR as an initial matter might make good sense, given that the answers will matter in virtually every case this court hears. (That still doesn't explain the delay, of course.)

But the downside is that going en banc probably means still more delay before the CMCR decides these issues, at which point they can (and surely will) be appealed to the D.C. Circuit. I've written at some length both about the substance of the jurisdictional issues plaguing the military commissions, and, as importantly, the extent to which their continuing lack of resolution (one way or the other) has a dramatic impact on current debates over civilian courts vs. military tribunals, especially for the 9/11 defendants. Unfortunately, Friday's news suggests that we're no closer to making progress.