Law Commons^™

The Virtues Of Abstention: Separation Of Powers In Al-Nashiri Ii, Nicholas A. Dimarco

St. John's Law Review

(Excerpt)

Part I examines various scholarly approaches to judicial deference, then considers deference in the context of military commissions. In Part II, the history of military commissions in the United States is examined, paying particular attention to the extended dialogue among the coordinate federal branches that created the system currently in operation. The decision in Al-Nashiri II not to adjudicate a collateral attack on one of these commissions is the focus of Part III. That Part embraces the underlying jurisdictional challenge at stake in Al-Nashiri II, the development of abstention doctrine generally and as applied to the current commissions, …

The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi

Reviews

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our thinking …

Justice Against Sponsors Of Terrorism: Why Suing Terrorists May Not Be The Most Effective Way To Advance United States Foreign Policy Objectives, Drew Watkins

Kentucky Law Journal

No abstract provided.

When Terrorists Govern: Protecting Civilians In Conflicts With State-Building Armed Groups, Mara R. Revkin

Faculty Scholarship

Many existing U.S. counter-terrorism policies, including those governing targeting and detention, rely on an empirical assumption that terrorist groups are primarily military organizations. This assumption may be appropriate in the case of al-Qaeda, but it fails to describe terrorist groups that engage not only in warfare but also in governance and state-building such as the Islamic State, a self-declared “caliphate” that—at the height of its expansion in 2014—claimed sovereignty over an estimated 34,000 square miles and 10 million civilians. This Article identifies a category of “state-building” terrorist groups that can be distinguished by the following characteristics: (1) the presence of …

Congressional Authorization Of The Campaign Against Isil, Tyler Salway

Indiana Law Journal

I. THE BIRTH OF ISIL

II. CONGRESSIONAL AUTHORIZATION

A. EXPRESS AUTHORIZATION

1. METHODS OF INCLUSION

2. ISIL’S INCLUSION UNDER THE 9/11 AUMF

B. IMPLICIT AUTHORIZATION

III. ISIL AND THE TRUMP PRESIDENCY

CONCLUSION

Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott

Faculty Articles

After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …

Excavating The Forgotten Suspension Clause, Helen Norton

Publications

No abstract provided.

Due Process Of War, Nathan Chapman

Scholarly Works

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords …

Due Process Of War, Nathan Chapman

Scholarly Works

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords …