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Tag Archives: Hamdan

Article III and the Bottom-Side Briefing in al Bahlul

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Tuesday, September 30, 2014 at 12:02 PM

Jane already flagged the merits brief filed by the U.S. government on September 17 in al Bahlul v. United States, the major challenge to the power of the Guantánamo military commissions to try non-international war crimes that was remanded by the en banc D.C. Circuit to the original three-judge panel back in July (and in which oral argument is . . .
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A Nugget of Real News in General Martins’s Statement

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Monday, August 4, 2014 at 7:36 AM

Last night, Wells posted a statement by Military Commissions Chief Prosecutor Mark Martins about the weeklong Nashiri hearing getting under way today at Guantanamo. The statement contains the following sentence: “I also assess at the present time that there are no additional prosecutions against Guantanamo detainees that would be made possible by the existence in the military . . .
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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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Bradley & Goldsmith Supplement for Foreign Relations Law

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Wednesday, May 8, 2013 at 11:11 AM

Curtis Bradley and I have a casebook on foreign relations law that includes a heavy dose of national security law (including chapters on covert action and targeted killing) that might be of interest to Lawfare readers.  Here is a TOC for the book.  And here, hot off the press, is our latest Supplement.  It includes excerpts of the Supreme Court’s . . .
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An Explainer on Hamdan II, Al-Bahlul, and the Jurisdiction of the Guantánamo Military Commissions

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Friday, April 26, 2013 at 10:30 AM

As Wells noted on Tuesday, the D.C. Circuit granted the government’s petition for rehearing en banc in Al-Bahlul v. United States. This is a very important development, as the full appeals court will now determine whether military commissions may try defendants for pre-2006 instances of “standalone” conspiracy and providing material support for terrorism. Al-Bahlul has . . .
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Convening Authority Dismisses Sworn Charges in Three Commission Cases

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Thursday, January 31, 2013 at 12:18 PM

A procedural note from commissions-land: in documents signed on Monday, the Convening Authority, Retired Vice Admiral Bruce MacDonald, dismissed sworn charges—material support and standalone conspiracy—against GTMO detainees Sufyian Barhoumi, Jabran Said Bin Al Qahtani, and Ghassan Abdullah al Sharbi.   Though charges had been sworn against all three in 2009, none were referred for trial.  Acting on the . . .
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Chief Prosecutor Statement on this Week’s Hearing in the 9/11 Case

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Monday, January 28, 2013 at 3:26 PM

You’ll find a copy here. The Chief Prosecutor’s statement naturally overviews the week’s proceedings; one portion, however, addresses an issue not formally included on the docket but likely of interest to Lawfare readers: Conspiracy as a Separate, Stand-Alone Offense  The accused in this case have filed a motion to dismiss all charges (Appellate Exhibit  107).  The most current . . .
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No, General Martins Has Not “Gone Rogue”

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Sunday, January 27, 2013 at 8:56 AM

The New York Times has a news analysis piece by this morning the excellent Charlie Savage, which requires a moment’s reflection. Charlie is about as good a reporter as there is out there on Lawfare-related matters, and he has broken most of the stories related to the internal machinations within the executive branch over the future of . . .
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Military Commission Prosecutor’s Filings Regarding 9/11 Conspiracy Charges

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Saturday, January 26, 2013 at 8:39 AM

The Guantánamo military commissions yesterday released—after a security review—a pair of important filings by the Office of the Chief Prosecutor (OCP), regarding the ongoing controversy over the conspiracy charges against the five 9/11 defendants. (For background, see our prior coverage here, here, and here; and Chief Prosecutor Brig. Gen. Mark Martins’s podcast with Ben on the decision . . .
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What to Make of Judge Pohl’s Ruling? Letter Filings in Al-Nashiri v. MacDonald

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Friday, January 25, 2013 at 3:50 PM

What, if anything, do developments in the military commission case of United States v. al-Nashiri portend for Al-Nashiri v. MacDonald, an ongoing, civil challenge to the accused’s war crimes prosecution?  The question arises in letters filed in the civil case, one by the United States last Friday, and another by al-Nashiri’s lawyers  today. Some quick background: . . .
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An Amended Hearing Agenda, and More Conspiracy Charge News in the 9/11 Case

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Tuesday, January 22, 2013 at 12:14 PM

Fresh from a security scrub are these two items in United States v. Mohammed et. al.: first, an Amended Docketing order, wherein Judge James Pohl excises two previously scheduled defense motions to compel discovery from the agenda for next week’s hearing, and adds in five other defense requests—including one to compel discovery related to “White . . .
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No USG Appeal in Hamdan; Stay Tuned for al-Bahlul

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Friday, January 18, 2013 at 11:22 PM

We end the evening with this procedural nugget from Jess Bravin of the Wall Street Journal: in Hamdan II, the deadline for the United States to seek en banc review from the D.C. Circuit, or a writ of certiorari from the Supreme Court, came and went.  The last day for further court challenge in that case, by . . .
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Convening Authority Rejects Prosecution Bid to Dismiss Conspiracy Charges in the 9/11 Case

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Friday, January 18, 2013 at 2:55 PM

Whoa. Remember the Chief Prosecutor’s tactical recommendation to pull standalone conspiracy charges in the 9/11 case—in light of the D.C. Circuit’s analysis in Hamdan II, and the strong likelihood that the same court (or the Supreme Court) would follow Hamdan II, and invalidate conspiracy as a commission offense with respect to pre-2006 conduct? Well, the military commissions’ Convening . . .
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A Possible Alternative Explanation for Eric Holder’s Action in Al Bahlul

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Monday, January 14, 2013 at 9:53 PM

An informed observer in the executive branch writes in response to Bobby and my post of earlier today on Eric Holder’s decision to continue the appeal in Al Bahlul: Let me offer for your consideration an alternative explanation for the Department of Justice’s actions.  Let us assume that Eric Holder is not channeling his inner David . . .
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Charging Decisions After Hamdan II and Al-Bahlul: Al-Nashiri Seeks to Dismiss Conspiracy and Terrorism Charges

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Monday, January 14, 2013 at 8:40 PM

Reported on Friday by the Miami Herald’s Carol Rosenberg: defense attorneys in United States v. Al-Nashiri filed a renewed motion to dismiss the conspiracy charge against their client.  At the same time, the lawyers reactivated an earlier request to throw out a terrorism charge from the capital commission case, one of two ongoing at Guantanamo. The . . .
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The Conspiracy Decisions at DoJ and DoD—Some Thoughts

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Monday, January 14, 2013 at 10:58 AM

We refrained last week from expressing much opinion on the decisions by both Military Commissions Chief Prosecutor Mark Martins and by the Justice Department in the Al Bahlul case concerning how to handle stand-alone inchoate conspiracy charges after Hamdan II. We refrained both because the news was still breaking around us and because one of us . . .
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Terrorists, Pirates, and Drug Traffickers: Customary International Law and U.S. Criminal Prosecutions

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Friday, January 11, 2013 at 10:34 AM

As I discuss in my forthcoming book, International Law in the U.S. Legal System, regardless of whether customary international law has the status of self-executing federal law, it can play an important role in U.S. litigation.  The invocation of customary international law in civil suits brought under the Alien Tort Statute is of course well . . .
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The Lawfare Podcast Episode #23: Brig. Gen. Mark Martins on His Decision to Drop Standalone Conspiracy Charges Against 9/11 Defendants

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Thursday, January 10, 2013 at 1:48 PM

In this special episode of the Lawfare Podcast, Military Commission Chief Prosecutor Brigadier General Mark Martins discusses his decision to recommend dropping conspiracy charges against Khalid Sheikh Mohammed and the other 9/11 defendants. Martins announced yesterday that in light of the Hamdan II decision—in which the D.C. Circuit held that material support for terrorism is not . . .
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About Those MST and Conspiracy Convictions … in al-Qosi

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Tuesday, January 8, 2013 at 5:17 PM

Apropos of Charlie Savage’s story (and Bobby’s follow-up) on the government’s litigation tactics in Hamdan and al-Bahlul: assuming the material support and conspiracy charges in those cases indeed are tossed out (through final invalidation by the courts, or through unilateral withdrawal by prosecutors, or through some combination), what happens to material support and/or conspiracy convictions . . .
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Appellant’s Reply Brief Filed in Al-Nashiri v. MacDonald

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Saturday, December 29, 2012 at 11:05 AM

On Thursday, lawyers for Abd Al Rahim Hussein Al-Nashiri filed their reply brief in Al-Nashiri v. MacDonald, a civil case now pending before the United States Court of Appeals for the Ninth Circuit. Al-Nashiri, a defendant before the Guantanamo military commissions, had sued the commissions’ Convening Authority, retired Vice Admiral Bruce MacDonald in federal court. . . .
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