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Articles 1 - 7 of 7

Full-Text Articles in Law

The Choice Of Law Against Terrorism, Mary Ellen O'Connell Nov 2013

The Choice Of Law Against Terrorism, Mary Ellen O'Connell

Mary Ellen O'Connell

The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.


Hamdan V. United States: A Death Knell For Military Commissions?, Jennifer Daskal Oct 2013

Hamdan V. United States: A Death Knell For Military Commissions?, Jennifer Daskal

Jennifer Daskal

In October 2012, a panel of the D.C. Circuit dealt a blow to the United States’ post- September 11, 2001 decade-long experiment with military commissions as a forum for trying Guantanamo Bay detainees. Specifically, the court concluded that prior to the 2006 statutory reforms, military commission jurisdiction was limited to violations of internationally-recognized war crimes; that providing material support to terrorism was not an internationally-recognized war crime; and that the military commission conviction of Salim Hamdan for material support charges based on pre-2006 conduct was therefore invalid. Three months later, a panel of the D.C. Circuit reached the same conclusion …


The Eyes Of The World: Charges, Challenges, And Guantánamo Military Commissions After Hamdan Ii, Christina M. Frohock Oct 2013

The Eyes Of The World: Charges, Challenges, And Guantánamo Military Commissions After Hamdan Ii, Christina M. Frohock

University of Miami National Security & Armed Conflict Law Review

Guantánamo military commissions are under a spotlight, scrutinized by the judiciary and the public. Just the word “Guantánamo” can trigger impassioned reactions from both advocates and detractors. This article takes a measured view, examining a recent opinion from the U.S. Court of Appeals for the D.C. Circuit, Hamdan v. United States (“Hamdan II”), that speaks to the legitimacy of military commissions convened in Guantánamo to try the September 11th defendants and others. While several media commentators seized on the opinion as striking a blow to Guantánamo proceedings, in fact the opinion approves military commissions and offers a roadmap for prosecutors. …


The Constitution And National Security, Erwin Chemerinsky Feb 2013

The Constitution And National Security, Erwin Chemerinsky

Touro Law Review

No abstract provided.


Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl Jan 2013

Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl

Mark A. Drumbl

In Rasul v. Bush, the Supreme Court held that U.S. district courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. In this paper, I explore what has happened since the Rasul decision: most notably, the introduction of combatant status review tribunals as a response to Rasul and the challenges that have been filed thereto and adjudicated in the federal courts (Khalid, In re Guantanamo Detainee Cases); the charges brought against certain detainees by military commissions and challenges to these commissions filed in the …


Trying Terrorism: Joint Criminal Enterprise, Material Support, And The Paradox Of International Criminal Law, Alexandra Link Jan 2013

Trying Terrorism: Joint Criminal Enterprise, Material Support, And The Paradox Of International Criminal Law, Alexandra Link

Michigan Journal of International Law

This Note will examine theoretical problems in ICL and public international law by evaluating the practical implications of applying ICL sources to find criminal liability outside the narrow confines of the international tribunals. It will examine the problems posed by the conflicting standards of the Rome Statute and ICTY jurisprudence as a matter of customary international law, the failure of U.S. courts to effectively confront the contextual and doctrinal analysis necessary to determine the limitations of these sources, and the proper application of these sources to the issues raised in Hamdan II and Al Bahlul. Viewing ICL through the lens …


Hamdan V. United States: A Death Knell For Military Commissions?, Jennifer Daskal Jan 2013

Hamdan V. United States: A Death Knell For Military Commissions?, Jennifer Daskal

Articles in Law Reviews & Other Academic Journals

In October 2012, a panel of the D.C. Circuit dealt a blow to the United States’ post- September 11, 2001 decade-long experiment with military commissions as a forum for trying Guantanamo Bay detainees. Specifically, the court concluded that prior to the 2006 statutory reforms, military commission jurisdiction was limited to violations of internationally-recognized war crimes; that providing material support to terrorism was not an internationally-recognized war crime; and that the military commission conviction of Salim Hamdan for material support charges based on pre-2006 conduct was therefore invalid. Three months later, a panel of the D.C. Circuit reached the same conclusion …