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Category Archives: Terrorism Trials: Legislative Development: Article III Courts

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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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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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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John Brennan’s Remarks at HLS-Brookings Conference

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Friday, September 16, 2011 at 6:34 PM

Here is the prepared text, released by the White House, of John Brennan’s speech at the Harvard Law School-Brookings conference now under way in Cambridge. I will post video, including of the very interesting Q&A, as soon as I can: Remarks of John O. Brennan – As Prepared for Delivery Assistant to the President for . . .
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My Responses to Questions for the Record After July’s HASC Hearing on Detention Policy

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Wednesday, September 14, 2011 at 4:21 PM

As noted previously, I testified in late July before House Armed Services regarding detention policy, with a focus on the Warsame situation.  I’ve seen received a handful of QFRs from committee members, and thought readers might be interested in seeing what I had to say in response (especially since QFRs and responses aren’t often widely . . .
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Legislative Update

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Friday, May 27, 2011 at 10:33 AM

Unbeknownst to me, the NDAA as passed by the House of Representatives yesterday contains new–and very bad–provision mandating military commission trials for terrorist suspects. Added on the floor through an amendment by Rep. Vern Buchanan, which passed on a 246-to-173 vote, it reads as follows: SEC. 1043. TRIAL OF FOREIGN TERRORISTS. After the date of . . .
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Adam Serwer Nails It

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Wednesday, November 17, 2010 at 5:17 PM

Responding to my earlier post on Buck McKeon’s detention bill, Adam Serwer says the following, on which I cannot improve: I still maintain that there’s less difference between Republican and administration priorities than there appears to be, and both sides can probably get a lot of what they want if they decided to cooperate. The . . .
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Rep. McKeon’s Detention Bill

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Tuesday, November 16, 2010 at 3:13 PM

In his speech yesterday, incoming House Armed Services chairman Buck McKeon promised that his committee would work in the coming Congress on a “legal framework” for detention. Here’s hoping he is more serious about it this coming year than his work this past year might suggest. As Spencer Ackerman points out, McKeon has introduced detention . . .
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