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Category Archives: Military Justice

Referred for Prosecution But Never Tried: The (Latest) Guantánamo Math Problem

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Thursday, April 23, 2015 at 11:47 AM

Everyone should read Bobby’s post from last night on the potential approach of an endgame for the 122 detainees still in custody at Guantánamo. As Bobby points out, even if the government (miraculously) is able to transfer the 57 detainees cleared for transfer, that still leaves two categories of detainees in need of a solution: those the government . . .
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Bowe Bergdahl Charged with Desertion

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Wednesday, March 25, 2015 at 3:04 PM

That’s the news from the Washington Post this hour. Sgt. Bowe Bergdahl, the U.S. soldier who lived in Taliban captivity for five years and was ultimately released in exchange for five Taliban militants held in Guantanamo Bay, Cuba, has been charged with desertion (Art. 85, UCMJ) and misbehavior before the enemy (Art. 99, UCMJ). Army officials will hold a . . .
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Chris Jenks on the Petraeus Plea

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Friday, March 6, 2015 at 8:28 AM

The estimable Chris Jenks writes in from Australia with the following thoughts on my piece yesterday on the David Petraeus plea: Appreciated your comments on Petraeus. One additional factor which resonates with me and I think most military folks is that Petraeus was a general court martial convening authority for a decade or more. He . . .
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Chief Prosecutor Statement on This Week’s Hearing in the al Nashiri Case

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Monday, February 23, 2015 at 11:00 AM

Per our usual practice, Lawfare will be posting digests of the Al Nashiri military commission proceedings—which resume today at noon—throughout the week. First up is the statement by Brig. Gen. Mark Martins, which you can find below:

Argument Recap: The Critical Difference in How al-Nashiri Loses

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Tuesday, February 10, 2015 at 2:03 PM

If one thing was clear from Tuesday morning’s 61-minute argument before the D.C. Circuit in In re al-Nashiri, in which a Guantánamo military commission defendant seeks to challenge on constitutional grounds the composition of the intermediate Court of Military Commission Review (CMCR) assigned to hear the government’s interlocutory appeal in his case (which I previewed here), it was that . . .
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al-Nashiri Argument Preview: The CMCR’s Appointments Clause Problem

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Tuesday, February 3, 2015 at 8:17 AM

Next Tuesday, a three-judge panel of the D.C. Circuit (Henderson, Rogers, & Pillard, JJ.) is set to hear oral argument in In re al-Nashiri, the latest in a long-line of pre-trial disputes arising out of the Guantánamo military commission proceedings against Abd Al-Rahim Hussein Muhammed al-Nashiri, who is accused of involvement in two terrorist attacks . . .
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Law Enforcement as a Counterterrorism Tool

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Monday, January 12, 2015 at 10:39 AM

As I read the exchange between Bryan, Wells and Jack about law enforcement versus military methods of dealing with terrorism, I was reminded of a speech I gave at the Brookings Institution in 2010, which was later turned into an article.  And, perhaps not surprisingly, I found that I continue largely to agree with myself, . . .
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On War and Crime

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Saturday, January 10, 2015 at 12:00 PM

Yesterday at Lawfare, Bryan Cunningham sought to breathe new life into the “military versus law enforcement” debate over terrorism, along the way deeming the horrific assaults in Paris to be “consequences” of France’s police-centric strategy. He thus finds fault with the current counterterrorism regime generally, and invites others to join in a broader discussion about . . .
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Two Basic Problems With Abstention in Nashiri

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Tuesday, December 30, 2014 at 5:44 PM

Wells already flagged yesterday’s D.D.C. decision by Judge Roberts, refusing to enjoin Abd Al Rahim Hussayn Muhammad Al Nashiri’s impending trial by military commission, and abstaining from reaching the merits of his habeas petition until and unless he’s convicted and is unsuccessful in the direct post-conviction appeal provided by the Military Commissions Act. Interested (or, at least, hyper-attentive) readers may . . .
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Released: SSCI Detention and Interrogation Study, Along With Minority Views and the CIA’s Response

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Tuesday, December 9, 2014 at 11:19 AM

Here is the long-awaited Executive Summary of the Senate Intelligence Committee’s Study of the CIA’s Detention and Interrogation Program.  The latter includes in a single file a foreword authored by Senator Feinstein, as well as the Study’s findings and conclusions.  Additionally, the Committee also has published these materials: Senator Feinstein’s statement;  a history of key dates in in . . .
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The D.C. Circuit’s Mandamus Jurisdiction and the Legitimacy of the Military Commissions

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Sunday, December 7, 2014 at 11:10 AM

It now appears that the next military commissions case in which the D.C. Circuit will hear oral argument is that of Abd al-Rahim al-Nashiri (“Nashiri”), with oral argument scheduled before an as-yet unnamed three-judge panel on Tuesday, February 10, 2015. And although the underlying “merits” issue in Nashiri is hyper-narrow (whether two of the three judges set to hear . . .
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ICC Prosecutor Advances Examination of U.S. Detention Policies in Afghanistan

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Thursday, December 4, 2014 at 9:11 AM

As Professors Ryan Goodman and David Bosco have both noted in excellent posts at Just Security and Foreign Policy, respectively, over the past seven years, the International Criminal Court’s (ICC) Prosecutor has quietly but persistently advanced a “preliminary examination” of the conflict in Afghanistan.  Although it has been clear that the United States was one . . .
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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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