Brett Kavanaugh

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U.S. Supreme Court

Experts Testify on National Security and Executive Power at Fourth Day of Kavanaugh Hearings

During the fourth day of hearings on Judge Brett Kavanaugh's nomination to the Supreme Court, two experts testified on matters that may be of interest to Lawfare readers. Rebecca Ingber, associate professor at Boston University School of Law and contributing editor for Lawfare, testified about Judge Kavanaugh's approaches to executive deference on national security matters and to international law.

Military Commissions

The Difference Between the Article I and Article III Questions in Al Bahlul

Lawfare's Alex Loomis has a fascinating new paper up on SSRN about the scope of Congress's Article I power to "define and punish . . . Offences against the Law of Nations." But it's important to stress what Alex's article does not answer: Although Jack has suggested that Alex's analysis is relevant to the ongoing D.C. Circuit litigation in Al Bahlul over the constitutional powerof Guantánamo military commissions to try offenses like inchoate conspiracy, it goes only to the Article I question presented therein--whether Congress has the power to define inchoate conspiracy as an offense against the law of nations, as it has done in 10 U.S.C. § 950t(29). A wholly separate question--which Alex's paper does not seek to answer (see, e.g., footnote 357)--is whether Article III nevertheless prohibits a military, as opposed to civilian, court from trying the offense. As this post explains, there are compelling reasons why Congress should receive less deference in that context.

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