As Marty points out in his post, whether convicting Hamdan of "material support for terrorism" (MST) violates the Ex Post Facto Clause will be a major issue in Hamdan's appeal. Having now read Judge Allred's decision carefully, I strongly disagree with his conclusion that it does not. Judge Allred's framing of the ex post facto issue (p. 3) is unobjectionable: "the...
To tide readers over until Deb offers her thoughts, readers interested in some of the strengths and the weaknesses of the Hamdan verdict would do well to read Dave Glazier's post at National Security Advisors and Marty Lederman's post at Balkinization....
Well, the Hamdan verdict is in: guilty on five counts of material support to a terrorist organization, but significantly for cases to come - not guilty on the far broader charge of conspiracy. The Times’ story is here. Sentencing to follow this afternoon. This is hardly the end of the story. There will certainly be appeals. But...
I was hoping that the discussion last week would address not only who could be tried by a military commission, but also for what crimes someone could be tried. That issue flared up again yesterday in the Hamdan trial, when the presiding military judged refused to instruct the jury that any attempt by an "unlawful enemy combatant" -- a status...
Like our readers, I am enjoying the terrific and sophisticated discussion on Ben Wittes' important and highly persuasive book (My short reaction: He's pretty much right about most things). I hate to interrupt this flow with non-Wittes stuff, but I couldn't resist a brief note on the growing non-U.S.-related backlash against the ICC. Indeed, just as the U.S. seems to...
My apologies for implying that Ben is a neoconservative, but I think that the title of my last post -- "Damning International Tribunals With Faint Praise" -- is accurate. Stray or not, Ben's comment praises the international tribunals for (ostensibly) not offering defendants the same kinds of protections that defendants enjoy in U.S. civilian courts. The belief that the Rome...
I had planned to lurk on the sidelines until the discussion of Ben's fascinating book moved to the "need" for a new interrogation statute -- I, for one, am more than happy to have "interrogation laws that operate only at the highest altitude (nothing cruel or inhumane, nothing that causes severe pain or suffering) but never come down to earth,"...
Just in case there is some blogger fairness doctrine I don't know about, I should mention that Obama seems to generally favor the ICC -- though he obviously has reservations about U.S. membership. Here is his clearest statement, made last October: Now that it is operational, we are learning more and more about how the ICC functions. The Court has pursued...
No, that's not a snarky question. He has consistently made comments that seem to indicate far more openness to the Court than the typical Republican. In 2002, he voted against the appalling American Service-Members Protection Act (aka "The Hague Invasion Act"). In 2005, he said “I want us in the ICC, but I’m not satisfied that there are enough safeguards.”...
I really wanted to ignore the Wall Street Journal editorial that Julian mentioned yesterday, filing it in the "life is too short" category. But I can't help myself, because the editorial is just shockingly factually inaccurate -- to say nothing of its rather curious judgment, such as the idea that Bashir "may be the only man able to guarantee...
AFP is reporting that Radovan Karadzic, the former president of Republika Srpska and the former head of the euphemistically named Serb Democratic Party, has been arrested. This is great news -- if the ICTY had a "most wanted" deck of cards, Karadzic would be the Ace of Spades: As early as July 1991, the Bosnian Serb leaders, and in particular, Radovan...
As frustration with the Bush administration's War on Transparency continues to mount, scholars and pundits are beginning to suggest that the U.S. should think about creating a South African-style Truth and Reconciliation Commission to investigate the administration's many crimes. Nicholas Kristof is one example. Richard Clarke is another. And a third is Katherine Tiedemann, writing in The American Strategist: The South...
