The Future of Military Commissions at Stake? Oral Argument Thursday at the CMCR, and Links to the Government's Briefs

The en banc Court of Military Commission Review will hear oral argument this Thursday in al-Bahlul and Hamdan.  These cases are critical to the future of the military commission system.  They call into question the viability of conspiracy and material support as substantive offenses that can be charged in that system (at least for pre-2006 conduct), and they also raise questions about the applicability in the commission setting of various constitutional rights associated with trial.  Until these questions are resolved--i.e., until either the D.C. Circuit or the Supreme Court resolves them in the wake of the CMCR's eventual decision--one simply cannot say how the military commission system compares to civilian criminal prosecution along several key dimensions.   Oral argument in al-Bahlul begins at 10 am, with Hamdan following at 11:30 (please note that in an earlier post I only gave the 11:30 start time). I previously posted links to the appellant's briefs to the en banc court (dealing with the relevance of the "joint criminal enterprise" and "aiding the enemy" concepts in relation to conspiracy and material support), and now have links to the government's briefs as well: click here for the appellee's brief in al-Bahlul, and here for the appellee's brief in Hamdan.   I will post again this afternoon tomorrow providing an overview of the government's arguments in these briefs.