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Articles 1 - 25 of 25
Full-Text Articles in Law
For The Sake Of Consistency: Distinguishing Combatant Terrorists From Non-Combatant Terrorists In Modern Warfare, Alexander Fraser
For The Sake Of Consistency: Distinguishing Combatant Terrorists From Non-Combatant Terrorists In Modern Warfare, Alexander Fraser
Law Student Publications
This article aims to offer a solution for prosecuting terrorists consistently and efficiently in the ever-expanding world of modern warfare. It argues that our country's approach to prosecuting terrorists has been wildly inconsistent, and that clarity and consistency are required moving forward. The executive branch, which directs the path the Department of Justice and military take in these arenas, has been the main instigator of the inconsistency. The decision whether to prosecute foreign, non-citizen terrorists in an Article III federal court or military tribunal/commission has become politicized, allowing political winds to dictate policy, albeit an inconsistent, unprincipled one. The Bush …
Modern Military Justice: Cases And Materials, 2d Edition (2015), Gregory E. Maggs, Lisa M. Schenck
Modern Military Justice: Cases And Materials, 2d Edition (2015), Gregory E. Maggs, Lisa M. Schenck
GW Law Faculty Publications & Other Works
This textbook is about the modern military justice system of the United States. It covers court-martial procedures, substantive criminal law, and non-judicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives the federal courts jurisdiction over certain acts committed abroad, and the Military Commissions Acts of 2006 and 2009, which created military tribunals for trying enemy beligerents. The Second Edition includes several recent cases and addresses some of the significant changes that Congress has recently made to the Uniform Code of Military Justice and that the President has made to the …
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 …
Military Justice As Justice: Fitting Confrontation Clause Jurisprudence Into Military Commissions, Christina Frohock
Military Justice As Justice: Fitting Confrontation Clause Jurisprudence Into Military Commissions, Christina Frohock
Articles
The Guantánamo prosecution of Abd al-Rahim al-Nashiri, the alleged mastermind behind the deadly USS Cole bombing, highlights an unresolved issue in military commissions: whether the Confrontation Clause of the Sixth Amendment to the Constitution applies to bar hearsay statements of unavailable witnesses. While al-Nashiri's counsel recently moved for the military judge to take judicial notice that the Confrontation Clause applies, it is worth considering that the question may be framed differently. Rather than ask whether the Confrontation Clause applies in a military commission, we may ask whether a "testimonial statement" - the only kind of hearsay evidence that triggers the …
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 …
Guantánamo Military Commissions: “Judicial Approval And Guidance”, Christina Frohock
Guantánamo Military Commissions: “Judicial Approval And Guidance”, Christina Frohock
Articles
No abstract provided.
Modern Military Justice: Cases And Materials, Gregory E. Maggs, Lisa M. Schenck
Modern Military Justice: Cases And Materials, Gregory E. Maggs, Lisa M. Schenck
GW Law Faculty Publications & Other Works
This new textbook (ISBN-13: 978-0314268037) comprehensively covers the modern military justice system under the Uniform Code of Military Justice. Materials from every service within the Armed Forces show how the military justice system addresses all criminal offenses, ranging from minor infractions to serious offenses, such as the misconduct of soldiers at Abu Ghraib prison. The text covers the jurisdiction of courts-martial; sources of military law; military offenses and defenses; pretrial, trial, and appellate procedures; the role of judge advocates; nonjudicial punishment and other alternatives to courts-martial; special forums, such as boards of inquiry and military commissions for trying enemy belligerents; …
Modern Military Justice: Cases And Materials, Gregory E. Maggs, Lisa M. Schenck
Modern Military Justice: Cases And Materials, Gregory E. Maggs, Lisa M. Schenck
GW Law Faculty Publications & Other Works
Modern Military Justice: Cases and Materials (2012) is a textbook written by Professor Gregory E. Maggs and Associate Dean Lisa Schenck (both of the George Washington University Law School) and published by West (ISBN-13: 9780314268037).
This new textbook comprehensively covers the modern military justice system under the Uniform Code of Military Justice. Materials from every service within the Armed Forces show how the military justice system addresses all criminal offenses, ranging from minor infractions to serious offenses, such as the misconduct of soldiers at Abu Ghraib prison. The text covers the jurisdiction of courts-martial; sources of military law; military offenses …
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.
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.
Terrorism And The Law: Cases And Materials, Gregory E. Maggs
Terrorism And The Law: Cases And Materials, Gregory E. Maggs
GW Law Faculty Publications & Other Works
Terrorism and the Law: Cases and Materials (2d ed. 2010) is a textbook written by Professor Gregory E. Maggs (of the George Washington University Law School) and published by West (ISBN-13: 9780314908582).
The textbook considers legal aspects of a broad range of methods that governments have for fighting terrorism, including criminal penalties, economic sanctions, immigration restrictions, military force, and civil liability. It addresses not just the steps taken in reaction to the 9/11 attacks, but also many other counterterrorism measures by the United States and other nations in recent years. To offer a global and comparative perspective, the materials include …
Terrorism And The Law: Cases And Materials, Gregory E. Maggs
Terrorism And The Law: Cases And Materials, Gregory E. Maggs
GW Law Faculty Publications & Other Works
Terrorism and the Law: Cases and Materials (2d ed. 2010) is a textbook written by Professor Gregory E. Maggs (of the George Washington University Law School) and published by West (ISBN-13: 9780314908582).
The textbook considers legal aspects of a broad range of methods that governments have for fighting terrorism, including criminal penalties, economic sanctions, immigration restrictions, military force, and civil liability. It addresses not just the steps taken in reaction to the 9/11 attacks, but also many other counterterrorism measures by the United States and other nations in recent years. To offer a global and comparative perspective, the materials include …
No Room Left For Doubt: New Revelation About Guantánamo, Marc D. Falkoff
No Room Left For Doubt: New Revelation About Guantánamo, Marc D. Falkoff
College of Law Faculty Publications
Recent release orders, statements by some military lawyers and judges, and the military’s own admission of detention mistakes all confirm that the only way for the Obama administration to restore our legal system’s legitimacy in the eyes of the world will be to close down Guantánamo, scrap the ill-conceived military commissions, and charge in federal court those prisoners we think committed crimes.... More revelations about the illegitimacy of the Bush administration’s war-on-terror detention system have cascaded into the public consciousness this week. This new round of disclosures and court decisions should give pause to those who have joined the fashionable …
Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton
Some Observations On The Future Of U.S. Military Commissions, Michael A. Newton
Vanderbilt Law School Faculty Publications
The Obama Administration confronts many of the same practical and legal complexities that interagency experts debated in the fall of 2001. Military commissions remain a valid, if unwieldy, tool to be used at the discretion of a Commander-in-Chief. Refinement of the commission procedures has consumed thousands of legal hours within the Department of Defense, as well as a significant share of the Supreme Court docket. In practice, the military commissions have not been the charade of justice created by an overpowerful and unaccountable chief executive that critics predicted. In light of the permissive structure of U.S. statutes and the framework …
Responses To The Ten Questions [On National Security Posed By The Journal Of National Security Forum Board Of Editors], Gregory E. Maggs
Responses To The Ten Questions [On National Security Posed By The Journal Of National Security Forum Board Of Editors], Gregory E. Maggs
GW Law Faculty Publications & Other Works
In 2009, the Journal of the National Security Forum Board of Editors posed ten questions on national security to a group of national-security law experts. Contributors were free to answer as many of the ten questions as they wished. All responses were published in a special issue of the William Mitchell Law Review. I answered the following three questions: 3. What are the lessons from detaining non-U.S. citizens, labeled enemy combatants, at Gitmo? 4. What is left for the Supreme Court to decide after the Boumediene decision? 10. What is the most important issue for American national security?
The SSRN …
Punish Or Surveil, Diane Marie Amann
Punish Or Surveil, Diane Marie Amann
Scholarly Works
This Article endeavors to paint a fuller picture of previous practice and present options than is often present in debates about the United States' antiterrorism measures. It begins by describing practices in place before the campaign launched after September 11, 2001. The Article focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were …
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 …
Hamdan As An Assertion Of Judicial Power, Jana B. Singer
Hamdan As An Assertion Of Judicial Power, Jana B. Singer
Faculty Scholarship
In Hamdan v Rumsfeld, the Supreme Court rebuffed the Bush administration’s initial attempt to use Military Commissions created by Executive Order to try detainees held at Guantanamo Bay. The Court ruled that the President, acting alone, lacked the authority to employ the Commissions because their structure and procedure violated both the Uniform Code of Military Justice and the Geneva Conventions. Most academic commentators have viewed the Hamdan decision as primarily about the limits of executive power. On this view, the central constitutional problem in Hamdan was that the Executive had acted unilaterally in an area where the Constitution required the …
The Expressive Value Of Prosecuting And Punishing Terrorists: Hamdan, The Geneva Conventions, And International Criminal Law, Mark A. Drumbl
The Expressive Value Of Prosecuting And Punishing Terrorists: Hamdan, The Geneva Conventions, And International Criminal Law, Mark A. Drumbl
Scholarly Articles
In Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military commissions that had been proposed by the Executive to prosecute a small number of detainees captured in the 'war on terror' could not proceed. In response to the Hamdan decision, Congress enacted a new military commission structure in the 2006 Military Commissions Act (MCA), which President Bush signed on October 17, 2006. The MCA establishes military commissions for aliens classified as unlawful enemy combatants. It lists the crimes chargeable by such commissions. The MCA also amends domestic legislation - for example, the War Crimes Act - initially …
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 …
Should Lawyers Participate In Rigged Systems: The Case Of The Military Commissions, Mary M. Cheh
Should Lawyers Participate In Rigged Systems: The Case Of The Military Commissions, Mary M. Cheh
GW Law Faculty Publications & Other Works
Lawyers often represent clients when the odds are long or a catastrophe likely. The facts might be harmful, the evidence overwhelming, or the law clearly on the side of the opponent. Still, we do the best we can. But what if the system is rigged? What if the system has the trappings of a fair fight, but is, in fact, skewed to one side and, by design, the lawyer cannot fully defend the client? What if the lawyer can only lend legitimacy to a process that at its core is biased, slanted in favor of the other side, or fundamentally …
What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson
What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson
Articles in Law Reviews & Other Academic Journals
This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.
The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …