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- Faculty Journal Articles and Book Chapters (2)
- The University of New Hampshire Law Review (2)
- Articles & Chapters (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Erwin Chemerinsky (1)
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- Faculty Scholarship (1)
- Jennifer Daskal (1)
- Journal Articles (1)
- Law Faculty Scholarship (1)
- Mark A. Drumbl (1)
- Mary Ellen O'Connell (1)
- Michigan Journal of International Law (1)
- Reports (1)
- Scholarly Articles (1)
- St. John's Law Review (1)
- Touro Law Review (1)
- University of Miami National Security & Armed Conflict Law Review (1)
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Articles 1 - 19 of 19
Full-Text Articles in Law
The Virtues Of Abstention: Separation Of Powers In Al-Nashiri Ii, Nicholas A. Dimarco
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 Constitution And National Security, Erwin Chemerinsky
The Constitution And National Security, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Sentencing Complexities In National Security Cases, Chris Jenks
Sentencing Complexities In National Security Cases, Chris Jenks
Faculty Journal Articles and Book Chapters
Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.
This article examines the sentencing complexities in military national security cases, first defining a …
Sentencing Complexities In National Security Cases, Chris Jenks
Sentencing Complexities In National Security Cases, Chris Jenks
Faculty Journal Articles and Book Chapters
Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.
This article examines the sentencing complexities in military national security cases, first defining a …
The Choice Of Law Against Terrorism, Mary Ellen O'Connell
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
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
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
The Constitution And National Security, Erwin Chemerinsky
Touro Law Review
No abstract provided.
Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl
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
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
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 …
Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran
Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran
Law Faculty Scholarship
No abstract provided.
Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran
Obama's Failed Attempt To Close Gitmo: Why Executive Orders Can't Bring About Systemic Change, Erin B. Corcoran
The University of New Hampshire Law Review
[Excerpt] “In the lead up to the 2008 Presidential election, there was broad bipartisan support for closing the detention facility at Guantanamo Bay. President Bush was quoted as saying, “I’d like it to be over with.” John McCain and General Colin Powell echoed similar sentiments for ending detention at the naval base. In addition to prominent Republicans calling for closure, public opinion began to support finding alternative solutions for prisoners held at Guantanamo Bay.
Barack Obama wasted no time once sworn into office executing his central campaign promises. On January 22, 2009, two days after becoming the forty-fourth President of …
Military Commissions Revived: Persisting Problems Of Perception, Devon Chaffee
Military Commissions Revived: Persisting Problems Of Perception, Devon Chaffee
The University of New Hampshire Law Review
[Excerpt] “When the first military commission proceedings began in July 2004, the Bush Administration identified fifteen Guantanamo Bay detainees subject to the military commissions. Subsequently, Bush Administration officials asserted that they had evidence to move forward with between sixty and eighty cases within the commission system. But, by the time President George W. Bush left office in early 2009, the commissions had resolved only three cases.
Upon taking office, President Barack Obama initially suspended the military commission proceedings in the thirteen cases in which charges were pending, but, in May 2009, he announced his intention to move forward with some …
Remodeling The Classified Information Procedures Act (Cipa), Afsheen John Radsan
Remodeling The Classified Information Procedures Act (Cipa), Afsheen John Radsan
Faculty Scholarship
The intelligence community and the law enforcement sector are supposed to be working closely to keep us all safe from terrorists and other dangers. The benefits of this cooperation should not be frittered away by unnecessary burdens in trying suspected terrorists in civilian courts. If the executive branch is to be kept away from the dark side of counterterrorism, the courts, Congress, or a combination of the two should modernize their approach to alignment, to Section 6 of Classified Information Procedures Act, and to closed portions of trials.
First, a prosecutor’s discovery obligations should apply to the intelligence community only …
The Choice Of Law Against Terrorism, Mary Ellen O'Connell
The Choice Of Law Against Terrorism, Mary Ellen O'Connell
Journal Articles
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.
The Cost Of Confusion: Resolving Ambiguities In Detainee Treatment, Kenneth Anderson
The Cost Of Confusion: Resolving Ambiguities In Detainee Treatment, Kenneth Anderson
Reports
This short policy paper considers US counterterrorism policy with particular attention to treatment of detainees in matters of challenging detention, interrogation, trial of detainees, and release. It analyzes the existing US war on terror and considers future policies that would address both national security concerns and human rights/civil liberties concerns. The paper is written by two experts and advocates in counterterrorism-related issues, coming from the center right and the center left in American politics, as part of a project of the Stanley Foundation, Bridging the Foreign Policy Divide, which publishes papers by pairs of experts coming from conservative and progressive …
The Rule Of Law And The Military Commission, Stephen J. Ellmann
The Rule Of Law And The Military Commission, Stephen J. Ellmann
Articles & Chapters
This essay examines the underlying foundations of the Supreme Court's decision in Hamdan v. Rumsfeld. After laying out many of the features of the conflicting positions taken by the majority and dissents in the case, the article argues that the majority's judgment was by no means determined by the plain meaning of the statutory provisions at issue, nor even by the Steel Seizure framework of overlapping zones of executive and legislative power. Instead, three factors deserve special emphasis. The first is the Court's effort to protect, and catalyze, Congressional authority. The second is the Court's understanding of its own role …
Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl
Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl
Scholarly Articles
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 …