James Benjamin Co-Authors Blog Post on Jurisdiction of Military Commissions

Akin Gump partner James Benjamin Jr., who heads the firm’s securities enforcement and litigation practice, has co-authored the blog post “We Don’t Need to Broaden Military Commissions’ Jurisdiction” for Just Security, regarding a case to be heard this week by the U.S. Court of Appeals for the District of Columbia Circuit.

At issue in Al Bahlul v. United States, according to the post, is “the scope of congressional authority to ‘define and punish’ offenses for prosecution under the military commission system if the particular offense — conspiracy — is not recognized as a war crime under international law.” Benjamin and his co-author, a legal counsel at Human Rights First, observe that “an expansive view of congressional power in this area would raise important separation of powers issues and could threaten to usurp Article III judicial authority.”

The authors also address the question of whether “expanding the jurisdiction of military commissions beyond law of war violations is indeed necessary to reduce impunity or to address ‘logistical and security gaps’ in federal court prosecutions.”

The blog post concludes by stating that “before considering whether to expand the reach of military commissions to encompass prosecution of offenses not recognized as war crimes, it is worth taking a step back to consider not just whether such a step is constitutional, but also what practical considerations support doing so.”