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Tag Archives: Ex parte Quirin

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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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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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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Andrew Kent on the White Paper as a Plus for Civil Liberties

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Friday, February 8, 2013 at 8:14 AM

Here’s a counter-intuitive view of the White Paper–from the always-interesting Andrew Kent: Although many critics with a strong civil liberties and human rights bent deplore the DOJ White Paper for various reasons, there is actually something in there they should be pleased about.  The White Paper fleshes out a bit the Obama Administration’s relatively rights-protective . . .
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The Merits of DOJ’s Supplemental Brief in Al Bahlul

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Thursday, January 10, 2013 at 9:06 AM

Yesterday, we posted the government’s supplemental brief in the Al Bahlul military commission appeal in the D.C. Circuit, the headline of which was the government’s concession that Judge Kavanaugh’s opinion for the Court of Appeals in Hamdan II requires reversal of Bahlul’s conviction, as well. Without question, though, the far more interesting part of the brief is the . . .
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Judicial Review for Enemy Fighters? Andrew Kent on the Quirin Case

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Friday, January 4, 2013 at 11:00 AM

Andrew Kent writes in with the following guest post on his fascinating new article on Ex Parte Quirin. I asked Andrew to write up this piece, after reading an earlier draft of the underlying paper for a workshop last summer that Matt and Trevor organized at Columbia Law School. I found both the history Andrew . . .
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Readings: Andrew Kent on Ex Parte Quirin

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Friday, January 4, 2013 at 8:48 AM

Andrew Kent (Fordham University School of Law) has posted a new paper to SSRN, “Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case.”  (66 Vanderbilt Law Review 101 (2013).) Professor Kent will be guest-posting about the article, so the Readings post will be brief, but we wanted . . .
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Oral Argument Recap in Hamdan

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Friday, May 4, 2012 at 1:21 PM

Below is a recap of yesterday’s oral argument before the D.C. Circuit in Hamdan v. United States.  As for key takeaways, you’ll find Steve’s breakdown here, and my two cents’ worth here. Again, it is anyone’s guess how the case will be resolved.  The back-and-forth between the judges and the lawyers did not point obviously . . .
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My Three Takeaways from the Hamdan Argument

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Thursday, May 3, 2012 at 4:39 PM

Both because of my own biases and because Wells is going to be posting more of a blow-by-blow at some point (on top of his initial reaction, which I basically share), I’ll spare readers from a comprehensive account of this morning’s 59-minute-long oral argument in Hamdan v. United States before a standing room crowd in the . . .
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Thravalos Responds on Nashiri, Conspiracy, and Ex Post Facto

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Friday, April 20, 2012 at 8:41 AM

Further to my post from last Thursday on the Ex Post Facto Clause issue in the Nashiri prosecution, Haridimos Thravalos has sent in a response, which I’ve posted in its entirety below the fold. I’ll have a couple of reactions to Thravalos’s response later today.

Haridimos Thravalos on Hamdan, Conspiracy, and History

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Sunday, March 25, 2012 at 11:46 PM

I received this evening a most extraordinary guest post. It isn’t every day that someone sends me a memo outlining how a four-justice plurality of the Supreme Court got a key historical point wrong in a major case–much less does so convincingly. But that is what the following article by one Haridimos V. Thravalos claims about . . .
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Government Brief in Hamdan: The Looming Article III Problem…

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Tuesday, January 17, 2012 at 8:28 PM

Against the al-Nashiri backdrop, the government has now filed its brief on the merits in United States v. Hamdan (the first post-conviction appeal under the Military Commissions Acts of 2006 and 2009), which is set to be argued to a D.C. Circuit panel (Chief Judge Sentelle and Judges Ginsburg and Kavanaugh) on May 3. The central . . .
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Do Military Commission Defendants Have a Sixth Amendment Right to Counsel?

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Thursday, December 29, 2011 at 6:39 PM

There’s been a fair amount of media and blog attention to the proposed new rules governing (and substantially widening) the government’s access to communications between military commission defendants and their counsel. The draft order (courtesy of the Miami Herald) is here; the AP story is here; the ABA’s letter of protest to Secretary Panetta is . . .
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More on Yesterday’s Times Editorial

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Wednesday, December 29, 2010 at 9:43 AM

Bobby is quite right to link yesterday’s New York Times editorial to the one about which I complained back in October. But Bobby is a more generous soul than I am, and I am disinclined to give the Times’ editorial writers credit for curing the problem–even to the limited extent Bobby is (He asks: “Does this . . .
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Resolving Ambiguities? Yes. Dramatically Expanding Existing Detention Authority? No.

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Monday, September 20, 2010 at 1:43 PM

[A jointly-written post by Bobby Chesney and Benjamin Wittes] Does the substantive scope of detention authority conferred by the Graham bill (S. 3037) “dramatically expand existing law,” as Steve Vladeck alleges here? No, it does not.  It adds nothing to the range of circumstances in which the government has long claimed detention authority under the . . .
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