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Military Commissions

TypeCaseDescriptionYearKeywords

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NIMJ Amicus Al Bihani V Obama (DC Cir 2010) 09-5051 NIMJ and Fellow Amici Argued That the D.C. Circuit Should Hear the Case En Banc. The Brief Argued That the Panel Opinion's Conclusion That the Laws of War Do Not Limit the President's Detention Authority Conflicts with Supreme Court Precedent, and That Their Determination of Habeas Procedural Standards Was Also in Error and Overreaching.2010Habeas Review, Laws of War, Detention Authority, Executive Authority, Presidential Authority, Habeas Procedures

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NIMJ Amicus Brief in United States V Al Bahlul (Trial Proc 2006) NIMJ Argued First That Amicus Filings Should Be Permitted in Military Commissions Trials Convened Under the Presidential Order of Nov. 13, 2001, and Further That the Accused in Military Commission Proceedings Should Have the Right to Waive Representation of Counsel if They Are Mentally Competent to Do So and Represent Themselves, as They Would in Every Other American Court, to Specifically Include Military Courts-martial.2006Military Commission, Self-representation, Waiver of Right to Counsel, Amicus

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NIMJ Amicus Brief in United States V Mohammed, Et Al (Trial Proc 2008) In an Amicus to the Military Commission Trying Khalid Sheik Mohammad, and His Four Co-defendants, NIMJ Argued That Although the Military Judge Had Discretion to Accept a Provident Guilty Plea to Capital Offenses in This Case, He Should Nevertheless Not Do So in the Interests of Justice, Because Under the Plain Wording of the 2006 Military Commission Act Death is Only Authorized if the Accused is Both Convicted of the Offense (for Which Death is Authorized) by All Members Present at the Time the Vote is Taken, and if All Members Also Concur in the Sentence of Death. Acceptance of a Guilty Plea by the Military Judge Would Therefore Make the Accused Ineligible for the Death Penalty by the Accused’s Unilateral Action in Pleading Guilty.2008Military Commission, 2006 MCA, Death Penalty, Guilty Plea, Statutory Construction, Congressional Intent

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NIMJ Amicus United States V Hamdan (CMCR 2009) 09-002 NIMJ Argued Before the CMCR That Hamdan’s Conviction for Material Support for Terrorism Should Be Overturned. Congress Lacked Authority to Permit His Prosecution for Material Support Before an Article I Court Because the Material Support Statute Proscribes Conduct That Does Not Violate the Laws of War.2009Article I Court, Law of War Violation, Material Support for Terrorism, Military Commission Jurisdiction, Separation of Powers, Article III Courts

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NIMJ Amicus in Al Bahlul V United States (DC Cir 2012) 11-1324 Original Panel NIMJ Argued to the Original 2012 Panel of the D.C. Circuit That Military Jurisdiction Was Limited to “cases Arising in the Land and Naval Forces” or Offenses Committed by Enemy Belligerents Against the International Law of War. Because the Conviction of Al-Bahlul by Military Commission for Inchoate Conspiracy and Solitication Fell into Neither Exception, Article III and the Jury Trial Protections of the Fifth and Sixth Amendments of the Constitutional Required Trial in Civilian Courts.2012Military Commission, Military Jurisdiction, Inchoate Conspiracy, Article III, Define and Punish, Article I, Jury Trial Protection

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NIMJ Amicus in Al Bahlul V United States (DC Cir 2013) 11-1324 1st En Banc Before the En Banc D.C. Circuit, NIMJ Argued That the Jury Protections in Article III and the Fifth and Sixth Amendments of the US Constitution Limited the Jurisdiction of the Military Commissions Established by the 2006 Military Commissions Act to Those Offenses Which Were War Crimes Under the International Law of War, and That Inchoate Conspiracy and Solicitation Were Not Such Crimes. The Validity of Military Jurisdiction Turns on Both Congressional Article I Power to Define the Offenses, but Also an Atypical Exception to the Jury Trial Protections Such as That in Ex Parte Quirin for International Law of War Crimes.2013Military Commission, Military Jurisdiction, Inchoate Conspiracy, Article III, Define and Punish, Article I, Jury Trial Protection

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NIMJ Amicus in Al Bahlul V United States (DC Cir 2014) 11-1324 Panel Remand Amicus Before the Panel on Remand from the 2013 En Banc Court, NIMJ Argued That Article III and the Jury Trial Protections in the Fifth and Sixth Amendments Limited the Jurisdiction of Military Courts to “cases Arising in the Land and Naval Forces” or Offenses Committed by Enemy Belligerents That Violated the International Law of War. Congressional Power to Define an Offense Under Article I is Separate from the Existence of an Exception to the Jury Trial Provisions of the Constitution, and Both Must Be Satisfied to Support Military Jurisdiction. Because the Inchoate Conspiracy Charge Did Not Fall Within the Jury Trial Exception for International Law of War Crimes, Al-Bahlus’s Convictions Were Invalid.2014Military Commission, Military Jurisdiction, Inchoate Conspiracy, Article III, Define and Punish, Article I, Jury Trial Protection

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NIMJ Amicus in Al Bahlul V United States (DC Cir 2015) 11-1324 2d En Banc Arguing Before the En Banc D.C. Circuit, NIMJ Argued That the Jury Protections in Article III and the Fifth and Sixth Amendments of the US Constitution Limited the Jurisdiction of the Military Commissions Established by the 2006 Military Commissions Act to Those Offenses Which Were War Crimes Under the International Law of War. Because Inchoate Conspiracy and Solicitation Were Not Such Crimes, Al Bahlul’s Convictions Were Invalid. The Validity of Military Jurisdiction Turns Both on Congressional Article I Power to Define the Offenses, but Also on the Existence of an Atypical Exception to the Jury Trial Protections Such as That Recognized in In Re Quirin for Crimes Under the International Law of War.2015Military Commission, Military Jurisdiction, Inchoate Conspiracy, Article III, Define and Punish, Article I, Jury Trial Protection

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NIMJ Amicus in Nashiri V Obama (DC Cir 2015) 15-1023, 15-5020 NIMJ Argued That Abstention Under Schlesinger V. Councilman, 420 U.S. 738 (1975) Should Not Apply to the Guantanamo Military Commissions Because the Two Rationales Supporting Comity in Councilman Did Not Apply in Military Commission Proceedings. Specifically Collateral Review of Military Commission Proceedings Posed No Impact to Military Discipline and the Unique Appellate Structure of Military Commission Makes Them Subservient To, Not Independent of Civilian Courts. Finally, the Continued Uncertainty of the Applicability of Constitutional Protections in the Commissions and the Commissions’ Inability to Engage in the Type of Self-correction Necessary for the Independence of a Court System Argue Against Abstention Under Councilman. Finally, the Supreme Court Has Recognized an Exception to Abstention when Constitutional Claims Involved the Ability of Military Courts to Try the Defendant at All, an Exception Applicable Here with the Claim Contesting the Subject-matter Jurisdiction of the Commission.2015Military Commissions, Jurisdiction, Military Jurisdiction, Councilman, Councilman Abstention, Military Discipline, Subject-matter Jurisdiction, Military Justice System

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NIMJ Amicus in United States V Al Bahlul (CMCR 2009) 09-001 NIMJ Argued Before the CMCR That Bahlul’s Conviction for Material Support for Terrorism Should Be Overturned Because Military Commissions Are Courts of Limited Jurisdiction Convened to Try Violations of International Law and the Laws and Customs of War, and Material Support for Terrorism Does Not Violate Either.2009Congressional Power, Military Commission Jurisdiction, Material Support for Terrorism, Violations of International Law, Violations of the Laws and Customs of War

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NIMJ Amicus in United States V Hamdan (CMCR 2010) 09-002 NIMJ Filed a Brief in Support of the Defense's Argument That Two Military Judges on the Court of Military Commission Review (CMCR) Were Ineligible to Sit as CMCR Because They Were No Longer Assigned as Appellate Judges on a Service Court of Criminal Appeals as Required by the Rules for Trial by Military Commission (RTMC), Which Implemented the 2009 MCA Language Authorizing the Secretary of Defense to Assign Persons Who Are Appellate Military Judges to Be CMCR Judges. The Government, in Contradistinction, Argued That Military CMCR Judges Were Only Required to Be CAA Judges at the Time of Appointment2010Appellate Military Judges, CMCR Judges, Rules for Trial by Military Commission, Secretary of Defense

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NIMJ Amicus in Support of Petition of Certiorari in Al Bahlul V United States (Supreme Court 2017) 16-1307 NIMJ Argued That the Supreme Court Should Resolve the Exceptionally Important Question of Whether US Military Commissions May Constitutionally Exercise Jurisdiction over Domestic Offenses or if Such Military Commission Jurisdiction is Limited to Offenses Under the International Law of War. NIMJ Argued That This Jurisdictional Question Was Critical to On-going and Future Military Commission Legitimacy and Should Be Resolved De Novo by the Supreme Court.2017Military Commission, Law of War, International Law of War, Article III, Judicial Power, Structural Limits, Constitutional, De Novo, Plain Error, Guantanamo, Stand Alone Conspiracy, Inchoate Conspiracy, Conspiracy, Domestic Offenses, Law of War

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NIMJ Amicus in Support of Petition of Certiorari in Nashiri V Trump (Supreme Court 2017) 16-8966 NIMJ Argued That the Supreme Court Should Reverse the DC Circuit’s Decision to Apply Councilman Abstention to Bar Nashiri’s Challenge to the Military Commission’s Jurisdiction to Try Him. NIMJ Argued That the DC Circuit’s Decision Creates an Artificial Distinction Between the Application of Councilman Abstention for Subject-matter and Personal Jurisdiction Challenges, and Finally That Extension of Councilman Abstention to Military Commission is Belied by Their Track Record.2017Military Commission, Jurisdiction, Personal Jurisdiction, Subject-matter Jurisdiction, Offense Jurisdiction, Councilman, Abstention, Habeas