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Category Archives: Terrorism Trials: Military Commissions

Al Bahlul and Article III: A Reply to Marty and Steve

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Wednesday, July 16, 2014 at 4:00 PM

Marty and Steve’s post on al Bahlul (and Steve’s post here) is right that the D.C. Circuit’s decision should not be read as a green light for inchoate conspiracy charges in military commissions.  However, Marty and Steve go off course in magnifying the modest issues remanded to the panel in al Bahlul, particularly the impact . . .
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A Brief Reply to Jack and Peter on Al Bahlul

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Wednesday, July 16, 2014 at 1:51 PM

This morning, Marty Lederman and I have posted a detailed analysis of Monday’s en banc D.C. Circuit decision in al Bahlul—and what it portends for the future of military commissions, especially with respect to offenses not recognized as international war crimes. As Marty and I conclude, “Monday’s decision . . . underscores the serious constitutional . . .
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Bahlul and the Power of Congress to Define International Law

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Wednesday, July 16, 2014 at 10:00 AM

In Al-Bahlul, the en banc D.C. Circuit resolved some quite important issues regarding military commissions, but declined to address other no less important ones. Among other things, the full court opted to remand the question of Congress’s Article I power to make inchoate conspiracy an offense triable by commission. When a three-judge panel once more . . .
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A Rough Overview of Today’s Ruling in Al-Bahlul

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Monday, July 14, 2014 at 7:45 PM

This morning, the full D.C. Circuit resolved military commission defendant Ali Hamza Ahmad Suliman al-Bahlul’s’s long-running appeal, in split fashion: by rejecting al Bahlul’s challenge to his conspiracy conviction, but also by vacating his convictions for material support and solicitation. Now it seems additional arguments regarding the conspiracy count will be considered further, by the . . .
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En Banc D.C. Circuit Opinion in Al-Bahlul

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Monday, July 14, 2014 at 10:29 AM

I am thumbing through the long-awaited and seemingly split ruling, which opens as follows: Opinion for the court filed by Circuit Judge HENDERSON. Concurring opinion filed by Circuit Judge HENDERSON. Opinion concurring in the judgment in part and dissenting filed by Circuit Judge ROGERS. Opinion concurring in the judgment in part and dissenting in part . . .
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The Drone Memo Makes It Clear: Khadr’s Conviction Lacks Legal Foundation

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Monday, July 14, 2014 at 9:15 AM

As readers of this blog will know, after the Second Circuit released a redacted copy of the OLC’s “drone memo,” those of us who represent Omar Khadr filed a motion with the U.S. Court of Military Commission Review (“CMCR”) arguing that it undermined the validity of his convictions.  In due course, the government filed its . . .
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A New Judge In Al-Nashiri’s Military Commission

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Friday, July 11, 2014 at 9:04 AM

According to a detailing memorandum issued yesterday (and this piece in the Miami Herald) the new military judge for Al-Nashiri’s military commission will be Air Force Col. Vance Spath. The prior military judge in Al-Nashiri’s case, Army Col. James Pohl, opted to step aside and to assign Spath.  As explained in the memorandum, Pohl did so in . . .
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USG Opposes Khadr’s Bid to Lift Stay, Vacate Conviction Based on OLC Memo

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Monday, July 7, 2014 at 4:32 PM

Today, counsel for the United States asked the Court of Military Commission Review (“CMCR”) to bat away Omar Khadr’s recent effort to lift the stay of his appeal to that court, and to have his guilty plea overturned. The D.C. Circuit’s long awaited resolution of al-Bahlul stood to affect Khadr’s appeal; thus the CMCR had stayed the latter, pending further . . .
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Defense: OLC Memo Supports Invalidation of Omar Khadr’s Conviction

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Wednesday, July 2, 2014 at 10:20 AM

I am actually a tad surprised that Monday’s filing did not come a touch more quickly.  It seemingly deals quite a whack to Omar Khadr’s 2010 plea of guilty to violations of the Military Commissions Act—including conspiracy, material support, and “murder in violation of the laws of war.”  (The latter is roughly synonymous with participating in hostilities but . . .
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Statement by Defense Counsel on Effort to Obtain CIA Black Site Evidence in 9/11 Case

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Monday, June 30, 2014 at 3:44 PM

Detailed defense counsel for Ammar al Baluchi, also known as Ali Abdul Aziz Ali, had the following to say today, about a key filing in the 9/11 case: Today, counsel for Ammar al Baluchi filed a motion to compel the government to produce evidence of CIA torture of Mr. al Baluchi, following a similar order in . . .
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Global (Statutory) Habeas After Aamer

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Wednesday, June 25, 2014 at 4:00 PM

As my co-authors and I put the finishing touches on the 2014-15 Supplement to Aspen Publishers’ National Security Law and Counterterrorism Law casebooks, I had another thought about the potential consequences of the D.C. Circuit’s February 2014 decision in Aamer v. Obama—about which I’ve blogged a fair amount previously. Recall that, in Aamer, the D.C. Circuit held that the Supreme Court’s decision . . .
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Relitigating Guantánamo in the Context of Abu Khattala: A Different View

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Monday, June 23, 2014 at 7:00 AM

As I read Ben’s, Jack’s, John’s Steve’s and Wells’s posts, I come away with the impression that there is unanimous agreement at Lawfare that Abu Khattala (a) cannot be sent to Guantánamo for further interrogation and (b) must be tried in the civil justice system.  As a policy matter, they may be right in this particular case, but I respectfully . . .
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Chief Prosecutor Statement on Yesterday’s Arraignment in Al-Iraqi

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Thursday, June 19, 2014 at 10:08 AM

Here it is.  The text opens: Good afternoon. Today Abd al Hadi al-Iraqi—an Iraqi national whose records indicate was born as Nashwan Abd al Razzaq in 1961 in the city of Mosul—was arraigned before a United States military commission on charges that, as a senior member of Al Qaeda, he conspired with and led others . . .
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Abd Al Hadi Al-Iraqi Arraignment

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Wednesday, June 18, 2014 at 1:49 PM

This afternoon, Abd Al-Hadi Al-Iraqi will be arraigned before a military commission at Guantanamo. As per usual, video and audio of the pre-trial proceedings will be zapped, via closed circuit television, to Fort Meade’s Smallwood Hall; and as per usual, Lawfare will travel to Smallwood, view the broadcast and post almost-live dispatches in our “Events Coverage” section. . . .
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9/11 Case Motions Hearing: June 16 Session

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Monday, June 16, 2014 at 8:57 AM

At 0900, the fun resumes at Fort Meade’s Smallwood Hall, where (as always) your correspondent will view, via CCTV, pre-trial proceedings in United States v. Mohammed et al.   On the agenda for our two-day mini-hearing: filings and argument bearing on the defense’s discovery, in April, that FBI investigators had questioned a member of Ramzi binalshibh’s . . .
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Military Commission Charges Approved Against Abd Al Hadi Al-Iraqi

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Tuesday, June 3, 2014 at 9:41 AM

The Convening Authority’s sign-off came yesterday, and now allows the Guantanamo case to proceed to arraignment.  There are five charges in all—including denying quarter, attacking protected property, using treachery or perfidy, and (importantly) conspiracy, lasting from 1996 to October 29, 2006, to commit those and other offenses.   As readers know well by now, the case tees up an important test within the commissions—both . . .
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Today in Al-Nashiri

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Friday, May 30, 2014 at 12:10 PM

No open session today, either; only an ex parte, in camera session between the court and prosecutors. Which is to say: this week’s hearing has come to a close, so far as Lawfare’s coverage is concerned. UPDATE [2:15 p.m.]: the Chief Prosecutor’s remarks on the hearing can be found here.  The opening paragraphs are below.

Today in Al-Nashiri: Closed Session

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Thursday, May 29, 2014 at 9:48 AM

Today promises only closed argument on the government’s motion to have the military judge reconsider his order for extensive discovery into the CIA’s RDI program.  (Open argument was held yesterday.)  We’ll thus pause our military commissions coverage.  It remains to be seen whether tomorrow will feature open proceedings, or any proceedings at all; stay tuned.

Al-Nashiri Motions Hearing: May 28 Session

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Wednesday, May 28, 2014 at 9:49 AM

Down at Guantanamo, pre-trial proceedings will resume this morning in the military commission case of United States v. Al-Nashiri.  As always, courtroom discussion will be piped to a closed-circuit viewing facility here at Maryland’s Fort Meade, in almost-real-time.  (There’s a forty-second delay in the audio and video.) We understand that a Rule 505 session—regarding the handling . . .
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Senators Feinstein and Levin on 9/11 Case Delay, RDI Declassification

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Friday, May 23, 2014 at 4:30 PM

Made available today: a letter from Senators Dianne Feinstein and Carl Levin, which was sent to President Obama in January of this year and urged him to speed things up in the 9/11 case—chiefly by declassifying additional information regarding the CIA’s long-since-discontinued program of rendition, detention and interrogation. (The Obama Administration’s response, from then-White House Counsel . . .
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