The D.C. Circuit Court, before moving ahead with a significant test case on the war crimes powers of Guantanamo Bay military commissions, has asked for a firm indication of whether the detainee involved actually wants the case to go on.   In an order Tuesday, the en banc Circuit Court told a lawyer for Yemeni national Ali Hamza Ahmad Suliman al Bahlul to obtain a letter to clarify his intentions.  (The blog discussed the new uncertainty about the case in this post.)

The Obama administration is pressing before the en banc Circuit Court its argument that Congress has the power to treat as war crimes acts of terrorism that actually occurred before Congress had specified the offenses.   A three-judge Circuit panel rejected that argument in another detainee case last October, and then applied that ruling to wipe out the commission convictions of Bahlul.

The Circuit Court vacated that panel decision when it agreed to consider the case before the full seven-member en banc court.  It has set up a briefing and hearing schedule, which is to start unfolding on May 24 and is to be completed in time for a September 30 hearing.

However, in April, Bahlul gave a guard at Guantanamo a hand-written note saying he did not want the court case to continue.  His lawyers visited him, and they then told the Circuit Court that he had changed his mind anew, and did want the case to proceed.

That is what led the court on Tuesday to told Bahlul’s counsel to “obtain a letter from [him] stating whether he wishes to pursue his case in this court.”  The counsel is then to file that letter formally with the court.  The order said the filing “is due within a reasonable time after May 24.”

That is the date on which his lawyers are now due to file their opening brief.   The court’s Tuesday order said nothing about a potential modification of the briefing schedule.

All seven judges of the en banc court were listed on the order, but a footnote indicated that one of them, Circuit Judge Karen LeCraft Henderson, was satisfied with Bahlul’s lawyers’ claim that he had already indicated he wanted to press on.

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Recommended Citation: Lyle Denniston, A bit of skepticism on Bahlul, SCOTUSblog (May. 15, 2013, 7:16 PM),