The Court of Appeals for the District of Columbia Circuit handed down an opinion in al Bahlul v. United States,  throwing out the conspiracy conviction of a detainee at Guantánamo Bay, Cuba on June 12, 2015. The Court ruled that bringing the charge before a tribunal was unconstitutional because an international war crime was not alleged. This ruling vacates the conviction of detainee Ali-al-Bahlul, and in a 2-to-1 ruling, states that the government could prosecute him only in a civilian court if it wanted to bring a domestic-law charge like conspiracy against him.

In 2013, Cohen Milstein, along with Professor Stephen Vladeck of American University, Washington College of Law, filed an amicus brief on behalf of the National Institute of Military Justice in al Bahlul v. United States, Case No. 11-1324, before the Court of Appeals for the District of Columbia Circuit. The brief argued that the jury-trial protections in the Constitution mandate that law of war offenses that are not also violations of international law, like the conspiracy charge in al Bahlul, must be tried in an Article III court rather than in a military commission.

The case concerns the scope of military commission jurisdiction and will impact whether those facing terrorism related charges are tried before military commissions or Article III courts.

Cohen Milstein represented the National Institute of Military Justice (NIMJ), a nonprofit organization formed to advance the fair administration of military justice and foster improved public understanding of the military justice system. NIMJ’s advisory board is made up primarily of attorneys and experts who have served as military lawyers—several as flag officers. 

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