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Category Archives: Military Justice

Evidence of Absence: A Brief Reply to Peter Margulies on the al Bahlul Argument

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Thursday, October 23, 2014 at 9:55 AM

In light of both our prior exchange and my Just Security post from yesterday, I only have two new points to make in response to Peter Margulies’ post on yesterday’s D.C. Circuit oral argument in al Bahlul v. United States, which raises the question whether military commissions may constitutionally try offenses that are not recognized as international war crimes. As I . . .
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Confusing the Issues in al Bahlul

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Wednesday, October 1, 2014 at 10:11 PM

For the two people still following the exchange between me and Peter Margulies over the bottom-side briefing in the al Bahlul D.C. Circuit military commission appeal, I wanted to offer a very quick (and hopefully final) word in response to Peter’s surreply from this afternoon, in an effort to crystallize the true points of departure between . . .
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Why Article III Matters: A Reply to Peter Margulies on al Bahlul

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Tuesday, September 30, 2014 at 10:23 PM

I must confess that I don’t fully understand Peter Margulies’ response to my post from earlier today. My post argued that the bottom-side briefing in the D.C. Circuit in al Bahlul offers a relatively weak (and, in my view, already debunked) explanation for why Congess can allow allow military commissions to try enemy belligerents for wholly domestic offenses without . . .
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Article III and the Bottom-Side Briefing in al Bahlul

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Tuesday, September 30, 2014 at 12:02 PM

Jane already flagged the merits brief filed by the U.S. government on September 17 in al Bahlul v. United States, the major challenge to the power of the Guantánamo military commissions to try non-international war crimes that was remanded by the en banc D.C. Circuit to the original three-judge panel back in July (and in which oral argument is . . .
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Article III and the al Bahlul Remand: The New, New NIMJ Amicus Brief

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Monday, August 18, 2014 at 12:59 PM

On July 14, the en banc D.C. Circuit ruled in al Bahlul v. United States that “plain error” review applied to Bahlul’s ex post facto challenge to his military commission convictions for conspiracy, material support, and solicitation–and then upheld the first of those charges under such deferential review (while throwing out the latter two). One of the potentially unintended consequences of the Court . . .
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A Primer on Legal Developments Regarding Private Military Contractors

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Friday, July 18, 2014 at 4:30 PM

Recent events again have raised the issue of accountability for alleged human rights violations by Blackwater, the most notorious of the private contractors deployed by the United States in the Iraq war. On June 11, trial finally got underway of four Blackwater guards accused of shooting indiscriminately into traffic in Nisour Square in Baghdad, in . . .
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Toward a Coherent Theory of the “Military Exception” to Article III

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Wednesday, April 2, 2014 at 3:45 PM

My very first Lawfare post, back in December 2011, focused on the messy constitutional question raised by United States v. Ali—a case then pending before the Court of Appeals for the Armed Forces that raised the constitutionality of subjecting civilian military contractors to military, rather than civilian, trials. Although they raise different questions, I was . . .
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Military Commissions, Conspiracy, and al-Iraqi

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Tuesday, February 18, 2014 at 7:20 AM

Over the weekend, I blogged over at Just Security about the al-Iraqi case pending before the military commissions at Guantánamo—and, in particular, Saturday’s New York Times story reporting that the government has amended the charge sheet against al-Iraqi to add a charge of conspiracy. As readers likely know, the en banc D.C. Circuit will soon . . .
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Overview of Restrictions on Counsel in the Tsarnaev and 9/11 Cases

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Monday, December 2, 2013 at 3:00 PM

From the defense’s standpoint, which are more onerous: restrictions on lawyers in civilian terrorism cases or restrictions used in military commissions? Accused Boston Marathon bomber Dzhokhar Tsarnaev is currently challenging Special Administrative Measures (SAMs) imposed on him and his attorneys; Judge George O’Toole of the United States District Court for the District of Massachusetts heard argument on . . .
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Cully Stimson on “Sexual Assault in The Military: Understanding the Problem and How to Fix It”

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Wednesday, November 6, 2013 at 7:03 PM

Charles “Cully” Stimson of the Heritage Foundation writes in with these thoughts on a report Heritage has released on sexual assault in the military: In the spirit of keeping national security law devotees up to date on those topics that broadly effect military readiness, I thought I’d highlight a new Heritage Foundation special report released . . .
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A Quick Primer on Military Justice and The Manning Verdict

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Tuesday, July 30, 2013 at 4:42 PM

After hearing evidence in a contested bench trial, Army Colonel Denise Lind, a military trial judge, found Pfc. Bradley Manning guilty of most of the charges and specifications today in a military court room at Fort Meade, Maryland, in connection with his release of documents to Wikileaks.  Manning faces a maximum possible sentence of over 128 . . .
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My Last Word on the New Bahlul Amicus

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Tuesday, July 30, 2013 at 3:07 PM

Thanks to his “sur-reply”, I finally understand the premise of Peter Margulies’s argument—and his amicus brief—in al Bahlul with regard to why the en banc D.C. Circuit can affirm Bahlul’s conspiracy conviction even though conspiracy is not a war crime under international law: Because Bahlul was actually tried for murder, even though no one in . . .
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Three Questions for Peter Margulies on the New Bahlul Amicus Brief

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Monday, July 29, 2013 at 12:15 PM

There’s a lot to say about Peter Margulies’ reply to my and Kevin Heller’s criticisms of the “former government officials’” amicus brief in al Bahlul–the military commission appeal currently pending before the en banc D.C. Circuit, where the central question is whether the commission lawfully had jurisdiction to try and convict Bahlul of “conspiracy.” To put . . .
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Mixed Feelings on the NSA . . .

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Monday, July 29, 2013 at 6:16 AM

. . . from a cryptographer named Joseph Bonneau who receives an award from the agency: Yesterday I received the NSA award for the Best Scientific Cybersecurity Paper of 2012 for my IEEE Oakland paper “The science of guessing.” I’m honored to have been recognised by the distinguished academic panel assembled by the NSA. I’d like to again . . .
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A Response to Steve Vladeck and Kevin Jon Heller

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Saturday, July 27, 2013 at 8:40 AM

In recent posts both on Lawfare and at Opinio Juris, Steve and Kevin Jon Heller (here and here) sharply critiqued the brief that Jim Schoettler and I filed on Thursday for Former Government Officials, Former Military Lawyers and Scholars of National Security Law asking the en banc D.C. Circuit to uphold the military commission conviction . . .
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The Two Fundamental Flaws in the New Bahlul Amicus Brief

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Friday, July 26, 2013 at 10:44 AM

Raff already flagged yesterday’s filing of an amicus brief in support of the government in the Al Bahlul military commission appeal before the en banc D.C. Circuit by “former government officials, former military lawyers, and scholars of national security law,” a group that includes Ben, Ken, and two of my casebook co-authors–among others. At the . . .
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Justice Thomas and the Feres Doctrine

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Thursday, June 27, 2013 at 7:11 PM

Understandably lost in this week’s Supreme Court news was a somewhat surprising–and, in my view, welcome–dissent by Justice Thomas from the denial of certiorari in Lanus ex rel. Lanus v. United States. In his two-page dissent, Justice Thomas suggests that the Court should have granted cert. in order to revisit the “Feres” doctrine–named after a . . .
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The Continuing Importance of Military Commissions

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Monday, June 17, 2013 at 7:53 AM

As Ben noted on the day of President Obama’s big counterterrorism speech last month, one of the speech’s most notable elements was President Obama’s strong reaffirmation of the utility of military commissions, and his announcement that he wanted them to be used inside the United States.  I have built on Ben’s point in an essay . . .
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Article III Limits on Military Commissions, the (New) NIMJ Amicus Brief, and the En Banc D.C. Circuit

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Wednesday, June 12, 2013 at 10:30 AM

Wells already flagged yesterday’s news re: General Martins’ apparent skepticism about the availability of conspiracy and military commission charges in future military commission cases (at least those brought against the current Guantánamo detainees, all of whom could raise the same ex post facto argument as the one at the heart of Hamdan II). As Wells . . .
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The Manning Public Access Litigation Moves to District Court

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Thursday, May 23, 2013 at 11:17 AM

Before it gets lost in the coverage of this afternoon’s speech by the President, I wanted to flag a very important development in the ongoing saga that is the Bradley Manning court-martial. Folks may recall my post from about a month ago on the sharply divided decision by the Court of Appeals for the Armed . . .
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