CRS Legal Sidebar
Prepared for Members and
Committees of Congress
Supreme Court Declines to Take Up Military
Commission Challenges – Al Bahlul and Al-
Nashiri
Jennifer K. Elsea
Legislative Attorney
December 12, 2017
A version of this Sidebar originally appeared June 14, 2017.
Update: The Supreme Court denied certiorari in both cases in October 2017.
Two detainees at Guantanamo Bay earlier this year petitioned the Supreme Court for certiorari
challenging the current military commission system under the Military Commissions Act (MCA), but in
October 2017, the Court denied both petitions. The Supreme Court last addressed military commissions
in Hamdan v. Rumsfeld, a 2006 case that struck down the tribunal system established by the executive
branch. The Supreme Court’s denial of certiorari in these two cases means that the issues will remain
unresolved for the time being. In Al Bahlul’s case, due to the fractured nature of the opinion below, the
Court of Military Commission Review (CMCR) opinion technically remains controlling, even though none
of the appellate judges on the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit)
addressed its theory of the case and the government did not press for affirmance on that basis. In Al-
Nashiri’s case, the accused may have the opportunity to raise the challenges again if he is convicted by
military commission, but, given that he was challenging the jurisdiction of the military commission to
begin with and asserting the right not to be subject to it, prevailing on appeal would not provide the
relief sought.
As described in a previous Sidebar, Ali Hamza Ahmad Suliman al Bahlul was convicted in 2009 by a
military commission for conspiracy, solicitation, and material support of terrorism in connection with his
Congressional Research Service
7-5700
www.crs.gov
LSB10043
