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Tag Archives: Hamdan v. Rumsfeld

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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Three Questions for Peter Margulies on the New Bahlul Amicus Brief

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Monday, July 29, 2013 at 12:15 PM

There’s a lot to say about Peter Margulies’ reply to my and Kevin Heller’s criticisms of the “former government officials’” amicus brief in al Bahlul–the military commission appeal currently pending before the en banc D.C. Circuit, where the central question is whether the commission lawfully had jurisdiction to try and convict Bahlul of “conspiracy.” To put . . .
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The Two Fundamental Flaws in the New Bahlul Amicus Brief

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Friday, July 26, 2013 at 10:44 AM

Raff already flagged yesterday’s filing of an amicus brief in support of the government in the Al Bahlul military commission appeal before the en banc D.C. Circuit by “former government officials, former military lawyers, and scholars of national security law,” a group that includes Ben, Ken, and two of my casebook co-authors–among others. At the . . .
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Military Jurisdiction Over Civilians: Why the Supreme Court Should Grant Cert. in Ali

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Friday, May 3, 2013 at 6:57 AM

Next Thursday, the Supreme Court will decide whether or not to grant certiorari in United States v. Ali–the case in which the highest court in the military justice system, the Court of Appeals for the Armed Forces (CAAF), unanimously upheld the constitutionality of court-martial jurisdiction over a civilian contractor, albeit with sharp divisions among the five judges . . .
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A Guide to Appellate and Collateral Review Under the Military Commissions Acts

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Thursday, April 4, 2013 at 2:42 PM

As the recent decisions by the Court of Military Commission Review (CMCR) in the Guantánamo military commission ACLU/media access cases suggests, there are a host of complicated and heretofore unresolved questions about the scope of appellate and collateral review of military commission trial court decisions. In the following post (and below the fold), I aim . . .
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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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Conspiracy and Military Commissions After Hamdan II

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Wednesday, October 17, 2012 at 8:42 PM

In his post on yesterday’s decision in (what I think we should all call) Hamdan II, Jack writes “The historical arguments for a conspiracy charge in military commissions under the laws of war, while not slam dunks, are . . . more powerful than similar arguments for material support.” Thus,  he “think[s] the strong suggestions . . .
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Three (Early) Observations on Judge Kavanaugh’s Analysis in Hamdan

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Tuesday, October 16, 2012 at 11:57 AM

Raff already shared the news re: this morning’s D.C. Circuit decision reversing Salim Hamdan’s military commission conviction for providing material support to terrorism (MST), holding that MST wasn’t a recognized violation of the laws of war prior to 2006 (when it was codified as part of the Military Commissions Act of 2006), and so the MCA . . .
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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.

Nashiri, Conspiracy, and the Ex Post Facto Problem

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Thursday, April 12, 2012 at 9:17 AM

Notwithstanding the Lawfare love-in, I’m a bit troubled by one of the threads that appeared to emerge from the argument in Nashiri over whether conspiracy is a recognized violation of the laws of war.  Based on Ben’s summary, it sounds like both General Martins and Judge Pohl are quite taken with the historical research undertaken by Haridimos . . .
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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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