On July 10, counsel for Al-Senussi filed a motion with the Pre-Trial Chamber complaining that Libya had announced it would begin Al-Senussi's trial no later than the end of Ramdan -- August 7 -- despite the fact that Libya's admissibility challenge was still pending before the ICC. On August 5, Libya filed its response, arguing that it has no obligation...
As a progressive, I'm delighted that Bradley Manning was acquitted of aiding the enemy but horrified that he was convicted of espionage. Ethically, Manning is a hero, not a spy. As a law professor, though, I think it's critically important to get the law right -- and unfortunately, many commentators are simply misstating what the Espionage Act says and how courts...
I noted in the update to my response to Margulies that the Hamdan military commission rejected the government's argument that JCE is a viable alternative to conspiracy as an inchoate crime. It's worth adding that the Khadr military commission rejected the same argument. A brief filed by Khadr provides the necessary background (pp. 2-3; emphasis mine): On 2 February 2007, the Office...
Peter's reply is posted at Lawfare, and it addresses both my criticisms (here and here) and Steve Vladeck's (here). The reply is largely non-responsive to the points that I made in my posts; most of it is dedicated to establishing that the evidence presented at trial is sufficient to conclude that al-Bahlul participated in a JCE to commit 9/11 --...
Here is a paragraph you don't often see in the mainstream American media: The conviction of Manning, in other words, would also be a conviction of Bill Keller. Most importantly, if Manning is found guilty on the charge of aiding the enemy, it would strike a deep blow at the stated reason for the New York Times' existence. From the beginning,...
On page 23, the amicus brief concludes that al-Bahlul's "convictions should be affirmed." Presumably, that means the brief is asking for the DC Circuit to affirm al-Bahlul's conviction for conspiracy as an inchoate offence -- that was the charge on the charge sheet, and that is the charge that was upheld by the military commission in its findings. (The other convictions were...
A group of scholars and former military lawyers, including a number of good friends, have filed an amicus brief that argues the DC Circuit should uphold al-Bahlul's conviction by redescribing his conviction for conspiracy as an inchoate crime, which does not exist under international criminal law, as a conviction for completed war crimes via conspiracy as a "mode of liability,"...
Outside of Kigali, no one really doubts that the Rwandan government and military have financed, supplied, and at times even directed M23's actions in the DRC. But it's still nice to see the US government acknowledging that fact: It is the first response by Washington to recent M23 clashes with Congolese government forces near Goma, the largest city in the DRC's...
Well, not really. But that's the unintended consequence of yesterday's awful decision in US v. Sterling, in which the Fourth Circuit held that James Risen could not rely on journalist's privilege to avoid testifying against James Sterling, whom the government believes leaked classified information to Risen. According the court, the government is entitled to Risen's testimony, because he is the...
In the wake of the Pre-Trial Chamber's categorical rejection of Libya's admissibility challenge, the Libyan government asked the Appeals Chamber to suspend its obligation to transfer Saif Gaddafi to the ICC pending its appeal of the decision. The Appeals Chamber has now rejected that request and ordered Libya to surrender Saif to the Court. Here are the critical paragraphs of its decision: 24. Libya...
Ah, hypocrisy -- thy name is the United States. First up, US anger at Israel for not supporting a lawsuit concerning allegations that the Bank of China laundered money for Hamas and Islamic Jihad: Israeli Ambassador to the US Michael Oren was called back to Israel to take part in an emergency meeting convened this weekend by Prime Minister Benjamin Netanyahu so that Oren could pass on messages...
International lawyers are used to explaining to skeptics the functional case for diplomatic immunity by emphasizing the benefits it provides. Here's the 5 second version: we want our diplomats to be able to communicate with their host States since the alternative to communication is often (and certainly used to be) conflict. To ensure open communication we need diplomats who feel...
