Guantanamo: Prosecutions

Latest in Guantanamo: Prosecutions

Military Commissions

The D.C. Circuit's Thoroughly Convincing Decision in al-Nashiri

The D.C. Circuit's ruling rejecting a mandamus petition by Guantánamo military commission defendant Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri, not only sustained the D.C. Circuit's mandamus jurisdiction over the commissions in appropriate future cases, but was also at pains to suggest to Congress and the President that they revisit the means by which military judges are appointed to the intermediate Court of Military Commisison Review in order to moot al-Nashiri's serious constitutional objections under the Appointments Clause. 

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.

Guantanamo

This Morning's HASC NDAA Markup

A markup of the FY2016 defense bill---which includes, as per usual and among other things, provisions restricting transfers of Guantanamo detainees---will get underway at 10:00 a.m. at the House Armed Services Committee.

Embedded video is below; a copy of the Chairman's mark can be found here.  (Interested readers can find NDAA-related background here, too.)

Subscribe to Lawfare

EmailRSSKindle