Guantanamo: Litigation: Supreme Court

Latest in Guantanamo: Litigation: Supreme Court

Military Commissions

The Functional Case Against Military Commission Trials of "Domestic" Offenses

In part, the majority and dissenting opinions in al Bahlul v. United States reflect two different methodological approaches to the central question, formal or functional. But al Bahlul doesn't simply turn on whether one applies one or the other approach. So even as the majority correctly resorted to formalism in resolving al Bahlul's Article III challenge to his conspiracy conviction, properly applied, the Supreme Court's more functional approach ought to have produced the same result.

Military Commissions

Military Courts and Article III Functionalism: What Al Bahlul Should Have Said

Both Judge Henderson's dissent in al Bahlul and Peter Margulies's post criticizing the al Bahlul majority assume that courts should take a functional approach to the permissible scope of the jurisdiction of non-Article III military courts--and therefore balance a series of prudential factors in determining when military courts should be allowed to try offenses or offenders not previously subject to military jurisdiction. In this post, I explain why, at a fundamental level, formalism, and not functionalism, is the appropriate analytical mode--and, therefore, why both Judge Henderson's dissent and Peter's critique miss the mark. If anything, the biggest flaw in Judge Rogers' majority opinion is its failure to do more to explain why a formalistic approach is called for in this context. This post aims to fill that gap.

International Law

D.C. Circuit Affirms Denial of Preliminary Injunction in Abdullah v. Obama

The D.C. Circuit has just handed down a 12-page decision in Abdullah v. Obama, affirming the district court's denial of Abdullah's motion to enjoin the U.S. government from detaining him. Hani Saleh Rashid Abdullah, a Yemeni national, claimed his detention at Guantanamo violates a 1946 executive agreement between the U.S.

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