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Category Archives: Terrorism Trials: Legislative Development

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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9/18 Session #3: More Mayberry

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Wednesday, September 18, 2013 at 1:04 PM

The morning’s second session picks up where the first left off: with Bin Attash attorney Cheryl Bormann, with her witness, Air Force Col. Karen Mayberry, the Chief Defense Counsel, and with a discussion on the deteriorating information technology and defense confidentiality situations, in late spring of 2012. The witness conferred with other defense officials in . . .
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The President’s Speech: A Quick and Dirty Reaction–Part 2 (Guantanamo)

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Thursday, May 23, 2013 at 5:56 PM

President Obama made two important announcements about aspects of Guantanamo and its detainees in his speech today. These are worth flagging before I pivot and harp on the big problem with the President’s comments about the base and those held there. The first important announcement came in this paragraph: Today, I once again call on . . .
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Look Who Has Discovered Inherent Presidential Powers

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Wednesday, May 8, 2013 at 2:11 PM

Hmmmm. From Harold Koh’s speech to the Oxford Union: Congressional transfer restrictions with respect to Guantanamo detainees “must be construed in light of the President’s authority as commander-in chief to regulate the movement of law-of-war detainees, as diplomat-in-chief  to arrange diplomatic transfers, and as prosecutor-in-chief to determine who should be prosecuted and where.”

Domestic Military Detention After the (New) Feinstein Amendment

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Friday, November 30, 2012 at 6:57 PM

Wells is exactly right–and Senators Levin and Graham are exactly wrong–about the implications of last night’s Senate vote approving Senator Feinstein’s amendment to the FY2013 National Defense Authorization Act. Wells linked to the amendment, but here is the relevant language of what would be new 18 U.S.C. § 4001(b): (1) An authorization to use military . . .
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The Implications of Hamdan II for Bahlul

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Thursday, October 25, 2012 at 11:44 AM

Today, the U.S. Court of Appeals for the District of Columbia Circuit filed a per curiam order in the case of Bahlul v. United States, ordering the parties to file briefs addressing the implications of the court’s decision in Hamdan II. The three-judge panel in Bahlul is composed of Judges Karen LeCraft Henderson, Judith Rogers, . . .
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Could Hamdan Have Been Prosecuted in Federal Court Instead?

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Wednesday, October 17, 2012 at 11:32 PM

[UPDATE: A reader points out that when discussing this subject back in 2011, the question had arisen as to whether this was indeed the best reading of 2339B(d) for the 1996-2004 period.  I had responded that the issue was indeed more complex than I had at first suggested, for the following reason: The actus reus clause . . .
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Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism

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Wednesday, August 29, 2012 at 11:42 PM

I’m happy to report that I’ve recently completed drafting an article that has been much on my mind for the past few years.  Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism (Michigan Law Review, forthcoming 2013) is now posted to SSRN.  In it, I argue that (i) there is a widespread . . .
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CAAF Upholds Constitutionality of Military Jurisdiction Over Civilian Contractors

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Wednesday, July 18, 2012 at 6:56 PM

It’s turned out to be a very big news day in national security litigation land… In addition to the extensive coverage of Aulaqi v. Panetta (to which I hope to add some thoughts of my own later tonight), I wanted to flag another very important, but less well-noticed development: The Court of Appeals for the . . .
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Silliman and Pollard Confirmed to U.S. Court of Military Commission Review

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Friday, June 22, 2012 at 9:13 AM

Congratulations to Scott L. Silliman and William B. Pollard III, both of whom the Senate last night confirmed to be judges of the U.S. Court of Military Commission Review.  Both men must formally be sworn in before commencing their work on the court.  It is unclear precisely when the swearing-in proceedings will take place.

Senate Armed Services Committee Approves Two Nominees to CMCR

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Wednesday, June 20, 2012 at 3:12 PM

Breaking: earlier today, the Senate Armed Services Committee approved its two pending nominees for judgeships on the Court of Military Commission Review – William Pollard, and Professor Scott L. Silliman (who taught me in law school).  You’ll find some more background on the nominations here. Both nominations now proceed to the Senate floor.  It is believed . . .
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Rep. Thornberry on Removing Some Lawful Options While Keeping Others

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Wednesday, June 6, 2012 at 8:38 PM

Raff pointed earlier to a USA Today op-ed by Rep. Mac Thornberry (R-Texas), the Vice Chairman of the House Armed Services committee.  His piece is styled as a response – an “opposing view,” in USA Today parlance – to an editorial in the paper, entitled “Indefinite Detention is Un-american.”  The latter critiques the NDAA, and frets . . .
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House Votes to Bar Civilian Trial of Persons Within Scope of Military Commission Jurisdiction

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Friday, May 18, 2012 at 5:45 PM

Amidst all the discussion of whether and how to amend the House NDAA bill to address domestic captures, I am amazed that I did not notice the Rooney Amendment, which has been adopted.  What does it do?  Well, it looks like it flat out forbids civilian criminal prosecution for persons who would come within the . . .
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Rep. Adam Smith and Sen. Mark Udall Propose NDAA Changes

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Thursday, March 8, 2012 at 10:00 PM

House Armed Services Committee Ranking Member and Sen. Mark Udall have proposed a brief bill that would make two significant changes to the NDAA’s detention provisions. The bill, a fact sheet about which is available here, does two things: First, it requires that any person “who is detained in the United States” shall be “transfer[ed] . . . .
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Darrel Vandeveld On Reformed Military Commisions

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Thursday, March 8, 2012 at 9:32 PM

Lt. Col. Darrel J. Vandeveld became a kind of cause celebre a few years back when he quit as a prosecutor in the military commission system over ethical concerns about the process, gave a declaration on behalf of a commission defendant, and then testified against the Military Commissions Act of 2009. So it seems to me . . .
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Some Initial Reflections on Today’s Due Process Guarantee Act Hearing

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Wednesday, February 29, 2012 at 6:01 PM

While the experience is fresh, I thought I’d share some reflections on this morning’s Senate Judiciary Committee hearing on the Due Process Guarantee Act. [The SJC hearing page has copies of the witness statements (including my own), and should eventually have a working link to the webcast.] Off the cuff, I thought the hearing was . . .
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Peter Margulies Reports on AALS II

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Tuesday, January 10, 2012 at 2:43 PM

Here is Part II of Peter Margulies’s reporting from AALS: AALS Federal Courts Debate II: Military Commissions and Material Support The lively federal courts panel at the American Association of Law Schools conference also sparked disagreement on trials in military commissions.  Marty Lederman recalled that the administration had advised Congress in 2009 that courts might . . .
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Signing Statement on the Budget Bill

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Sunday, December 25, 2011 at 9:04 AM

A dispatch from the Lawfare North Pole: the White House seems to be using more aggressive language, in opposing Congress’s recent efforts to limit the executive branch’s authority over detainee affairs. Two days ago, the Administration released a statement on the President’s views regarding H.R. 2055, the Consolidated Appropriations Act of 2012 – also known . . .
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House-Senate Side-by-Side of NDAA Provisions: Part II

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Wednesday, December 7, 2011 at 12:11 PM

The following is a continuation of our side-by-side comparison of the House and Senate versions of the NDAA: Prohibition of Detainee Transfer to the United States The House version of the bill (Section 1039, p. 586) contains a specific prohibition on using fiscal year 2012 funds to “transfer or release an individual detained at Guantanamo Bay” . . .
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NDAA passage, final transcript from Senate Floor

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Friday, December 2, 2011 at 11:56 AM

The Senate passed the NDAA (S. 1867) last night on a 93-7 vote. The seven senators who voted against final passage are: Coburn Harkin Lee Merkley Paul Sanders Wyden The bill now moves on to a conference with the House. You can read the transcript from yesterday’s debate on the detainee provisions here, and previous . . .
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