Bahlul sentenced to life; forthcoming scholarship

1.  al Bahlul sentenced to life

From DoD’s press release:

Detainee Sentenced To Life In Prison

A military commission sentenced today Ali Hamza Ahmad Suliman al Bahlul of Yemen to confinement for life for conspiracy, solicitation and providing material support to terrorism in violation of the Military Commissions Act of 2006. Bahlul will immediately begin serving his sentence of confinement at Naval Station Guantanamo Bay, Cuba.

Bahlul’s  trail conviction is one step in the military commission process. Now that the trial is complete his case will receive an automatic review by the convening authority, who will evaluate the legal sufficiency of the findings and appropriateness of the sentence. Bahlul will still be represented by counsel and have the opportunity to submit matters for consideration on his behalf. Then his case will receive an automatic review by the Court of Military Commission Review. Thereafter, he will have the opportunity to appeal to the Court of Appeals for the District of Columbia and to the Supreme Court.

2. Forthcoming Scholarship

“The Extraterritorial Constitution after Boumediene v. Bush”

Southern California Law Review, Forthcoming
Harvard Public Law Working Paper No. 08-39

GERALD NEUMAN, Harvard University – Harvard Law School
Email: neuman@law.harvard.edu

The U.S. Supreme Court’s recent decision in Boumediene v. Bush elaborates a “functional approach” to the selective application of constitutional limitations to U.S. government action outside U.S. sovereign territory. This functional approach provides the best fit, both descriptively and normatively, to the Court’s modern case law. The decision repudiates the stance of the plurality in United States v. Verdugo-Urquidez (1990), which sought to deny all constitutional rights to foreign nationals involuntarily subjected to U.S. action abroad.

Important ambiguities remain in the articulation of the functional approach. One major question is whether and when foreign nationals who are not in U.S. custody (unlike the Boumediene petitioners) are also potentially eligible for constitutional protection. Another concerns how coarsely or finely the categories of foreign locations are drawn when the functional analysis is applied.

The confirmation of the functional approach has significant consequences for U.S. citizens who travel abroad, and for foreign nationals who travel here, as well as for foreign nationals who remain abroad. Although the Supreme Court did not rely on international law in its Boumediene decision, international human rights law may prove more helpful in the future in determining whether limitations such as the First Amendment or the Takings Clause can practicably be given effect in foreign countries.

Boumediene v. Bush and the Role of the Courts in the War on Terror: The Intersection of Hyperbole, Military Necessity, and Judicial Review

Geoffrey S. Corn
South Texas College of Law
New England Law Review, Forthcoming

Abstract:
In its recent decision of Boumediene v. Bush, the Supreme Court invalidated the collective effort of the President and Congress to limit the ability of “enemy combatants” held by the United States to challenge the legality of their detention in Article III courts. While the majority opinion focused primarily on the scope of the constitutional habeas guarantee, it is impossible to ignore the reality that the issue that lay just below the surface was the legitimacy of subjecting individuals to “generational” detention based on an expansively applied definition of the term “enemy combatant.” Although the Court had four years earlier held that preventive detention based on such a designation was conceptually justified as a “fundamental and accepted incident of war”, it had also suggested that should the scope of that definition become disconnected from the customary concept of an enemy battlefield belligerent, this justification might erode. By providing Guantanamo detainees with the long demanded opportunity to obtain judicial review of the legality of their detention, the Court has set in motion a process that will almost inevitably force the government to defend the scope of the enemy combatant definition it has relied on to justify the preventive detention of individuals who do not fall into the traditional realm of a battlefield belligerent. In so doing, the Court has set in motion a process that will finally bring to a head the legitimacy of applying detention authority derived from the long established customary law of armed conflict in a context context characterized by the hyperbolic designation of a “Global War.” Because the government will almost certainly now be forced to demonstrate how the scope of the enemy combatant definition relied on by the Combatant Status Review Tribunal’s in Guantanamo remains consistent with the law of armed conflict itself, the Boumediene opinion is not a catastrophic blow to the government’s authority to detain terrorists who participate in hostilities against the United States. Instead, it has provided the opportunity and impetus for the government to finally reconcile it’s assertion of detention authority with the law upon which it purports to apply – the law of armed conflict.

“Extraordinary Renditions and the State Secrets Privilege: Keeping Focus on the Task at Hand”

North Carolina Journal of International Law and Commercial Regulation, Vol. 33, p. 629, 2008

VICTOR HANSEN, New England School of Law
Email: vhansen@faculty.nesl.edu

In this paper I discuss the use of the state secrets privilege in the context of civil suits brought against the United States government and private contractors working for the federal government by alleged victims of extraordinary rendition. The paper focuses on how best to achieve meaningful oversight of the executive’s actions and allow the courts to fulfill their important role of providing individuals the opportunity to have their rights vindicated and protected, while at the same time securing legitimate state secrets. I hope that this focus on extraordinary rendition cases may also have broader applicability in other areas where the state secrets privilege is frequently asserted.

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