Terrorism Trials: Legislative Development: Article III Courts

Latest in Terrorism Trials: Legislative Development: Article III Courts

Terrorism Trials: Legislative Development: Article III Courts

Toward a Coherent Theory of the “Military Exception” to Article III

My very first Lawfare post, back in December 2011, focused on the messy constitutional question raised by United States v. Ali—a case then pending before the Court of Appeals for the Armed Forces that raised the constitutionality of subjecting civilian military contractors to military, rather than civilian, trials.

Criminal Law: Substantive

Could Hamdan Have Been Prosecuted in Federal Court Instead?

[UPDATE: A reader points out that when discussing this subject back in 2011, the question had arisen as to whether this was indeed the best reading of 2339B(d) for the 1996-2004 period.  I had responded that the issue was indeed more complex than I had at first suggested, for the following reason: The actus reus clause of the statute (2339B(a)) was jurisdictionally limited as I suggested, yet there was a separate clause that rather incongruously referred nonetheless to extraterritorial jurisdicti

Detention: Law of: D.C. Circuit Development

Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism

I'm happy to report that I've recently completed drafting an article that has been much on my mind for the past few years.  Beyond the Battlefield, Beyond al Qaeda: The Destabilizing Legal Architecture of Counterterrorism (Michigan Law Review, forthcoming 2013) is now posted to SSRN.  In it, I argue that (i) there is a widespread perception that the legal framework for detention and targeting has reached a point of relative stability thanks to a remarkable wave of interbranch and inter-party consensus since 2008; (ii) this facade depends almost

Terrorism Trials: Legislative Development

House Votes to Bar Civilian Trial of Persons Within Scope of Military Commission Jurisdiction

Amidst all the discussion of whether and how to amend the House NDAA bill to address domestic captures, I am amazed that I did not notice the Rooney Amendment, which has been adopted.  What does it do?  Well, it looks like it flat out forbids civilian criminal prosecution for persons who would come within the personal jurisdiction of a military commission, at least if the plan is to charge the person for an offense that could also be charged by commission.  Now perhaps I'm misunderstanding what transpired today, but if this did indee

Interrogation: Criminal: Miranda

John Brennan's Remarks at HLS-Brookings Conference

Here is the prepared text, released by the White House, of John Brennan's speech at the Harvard Law School-Brookings conference now under way in Cambridge. I will post video, including of the very interesting Q&A, as soon as I can:

Remarks of John O. Brennan – As Prepared for Delivery

Assistant to the President for Homeland Security and Counterterrorism

Program on Law and Security

Harvard Law School

Cambridge, Massachusetts

Friday, September 16, 2011

 

“Strengthening our Security by Adhering to our Values and Laws”

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