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Category Archives: Defense

Asculum Defeats: Prosecutorial Losses in the Military Commissions and How They Help the United States

Bickers, John M., Asculum Defeats: Prosecutorial Losses in the Military Commissions and How They Help the United States (May 1, 2016). National Security Law Journal, Volume 4 (Forthcoming) . Available at SSRN: http://ssrn.com/abstract=2773759

“Small but consistent failures have marked the U.S. endeavor to use military commissions in the struggle against Al Qaeda. The handful of cases have mostly ended in reversals of convictions and sentences. This article will consider the possibility that conflating two kinds of crimes created the legal errors that led to these defeats. Law of war military commissions have historically been used not only as extraordinary venues for prominent war criminals, but also for preserving the vital role of combatant immunity. Commissions thus tried those accused of grave breaches of international law as well as the kind of ordinary belligerency offenses that would not even have been illegal had the perpetrators been legitimate combatants. Because the military commissions stemming from the War on Terror drew precedent from all manner of past military commissions, whose rules contemplated trials for both kinds of accused, the government wandered into an ever-more labyrinthine view of the law appropriate to the commissions. The article will consider the completed cases, focusing on the prosecution’s choice to emphasize inchoate offenses. It will then compare international and domestic law and suggest that the government’s losses occurred because of the inappropriate amalgamation of grave breaches and belligerency offenses, and that the assessment of liability is very different between the two. International law has long recognized some species of expansive liability for grave breaches, but not for belligerency offenses. Because most detainee trials to date have been for belligerency offenses, the reliance on offenses like conspiracy and material support for terrorism has led to a string of reversals. This article will suggest, however, that these defeats suffered by the U.S. have actually been to its benefit. In the short term, the loss of confidence in the military commissions might make possible a federal trial for some of the remaining detainees, such as Khalid Shaikh Mohammed. The world benefits from a public trial of persons accused of grave breaches, but a U.S. military commission can no longer realize most of that potential benefit. In the long term, a regime of international law that provided expanded liability for belligerency offenses would greatly harm U.S. strategic interests. By losing a series of small judicial battles, the U.S. is positioned to win a much more significant war.”

Kaiser Health Tracking Poll: April 2016

“The April Kaiser Health Tracking Poll continues Kaiser Family Foundation tracking of perceptions of the safety of drinking water. KEY FINDINGS: The majority of individuals living in the Midwest rate the job being done by their state to ensure the safety of the public drinking water as fair or poor. Women are less confident inContinue Reading

GAO Reports – Defense Health Care, Indian Health Service, SEC InfoSec, Missile Defense, Public Transit, Veterans Justice, F-35 Joint Strike Fighter

Defense Health Care: DOD Is Meeting Most Mental Health Care Access Standards, but It Needs a Standard for Follow-up Appointments, GAO-16-416: Published: Apr 28, 2016. Publicly Released: Apr 28, 2016. Indian Health Service: Actions Needed to Improve Oversight of Patient Wait Times, GAO-16-333: Published: Mar 29, 2016. Publicly Released: Apr 28, 2016. Information Security: OpportunitiesContinue Reading

Terrorism, Human Rights, and Climate Change Top the Public’s Priority List for U.S. Engagement in World Affairs

Kaiser Family Foundation: Terrorism, Human Rights, and Climate Change Top the Public’s Priority List for U.S. Engagement in World Affairs “When it comes to world affairs, majorities of Americans list fighting terrorism (64%), protecting human rights (60%), and protecting the environment and fighting climate change (51%) as top priorities for the president and Congress, findsContinue Reading

CRS – Arms Sales: Congressional Review Process

Via FAS – Arms Sales: Congressional Review Process, Paul K. Kerr, Analyst in Nonproliferation. April 19, 2016. “This report reviews the process and procedures that currently apply to congressional consideration of foreign arms sales proposed by the President. This includes consideration of proposals to sell major defense equipment, defense articles and services, or the re-transferContinue Reading

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy

Via FAS – CRS report – Afghanistan: Post-Taliban Governance, Security, and U.S. Policy. Kenneth Katzman, Specialist in Middle Eastern Affairs. April 15, 2016. “The United States, partner countries, and the Afghan government are attempting to reverse recent gains made by the resilient Taliban-led insurgency since the December 2014 transition to a smaller international mission consistingContinue Reading

The U.S. Intelligence Community: Selected Cross – Cutting Issues

Via FAS – CRS report – The U.S. Intelligence Community: Selected Cross – Cutting Issues, Anne Daugherty Miles, Analyst in Intelligence and National Security Policy. April 12, 2016. “This report focuses on cross-cutting management issues that affect the Intelligence Community’s (IC’s) ability to counter “pervasive and emerging threats” to the United States and balance resourcesContinue Reading

GAO reports – Counterterrorism, CFTC Leasing Guidance, DoD and mental health, national flood insurance, VA health care

Counterterrorism: DOD Should Enhance Management of and Reporting on Its Global Train and Equip Program, GAO-16-368: Published: Apr 18, 2016. Publicly Released: Apr 18, 2016. Federal Real Property: Commodity Futures Trading Commission Needs Better Leasing Guidance to Improve Cost-effectiveness, GAO-16-434: Published: Apr 18, 2016. Publicly Released: Apr 18, 2016. Foreign Aid: USAID Generally Complied withContinue Reading

GAA Reports – Prepositioned Stocks, Quadrennial Homeland Security Review

Prepositioned Stocks: DOD Has Addressed Required Reporting Elements but Needs to Develop a Department-wide Policy and Joint Service Approach, GAO-16-418:Published: Apr 15, 2016. Publicly Released: Apr 15, 2016. Quadrennial Homeland Security Review: Improved Risk Analysis and Stakeholder Consultations Could Enhance Future Reviews, GAO-16-371:Published: Apr 15, 2016. Publicly Released: Apr 15, 2016: “The Department of HomelandContinue Reading

Surveillance of Foreigners Outside the United States Under Section 702 of the Foreign Intelligence Surveillance Act

Via FAS – Surveillance of Foreigners Outside the United States Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), Edward C. Liu, Legislative Attorney. April 13, 2016. “After the attacks of September 11, 2001, President George W. Bush authorized the National Security Agency to conduct a Terrorist Surveillance Program (TSP) to “intercept international communicationsContinue Reading

Quadrennial Homeland Security Review: Improved Risk Analysis and Stakeholder Consultations Could Enhance Future Reviews

Quadrennial Homeland Security Review: Improved Risk Analysis and Stakeholder Consultations Could Enhance Future Reviews, GAO-16-371: Published: Apr 15, 2016. Publicly Released: Apr 15, 2016. “The Department of Homeland Security (DHS) assessed risk for the second Quadrennial Homeland Security Review (QHSR) and considered threats, vulnerabilities, and consequences; however, DHS did not document how its various analysesContinue Reading

Counting Casualties in Syria and Iraq: Process and Challenges

Via FAS – CRS INSIGHT – Counting Casualties in Syria and Iraq: Process and Challenges. April 12, 2016 (IN10474) “Casualty estimates for the conflicts in Iraq and Syria are inconsistent and unreliable because of a range of methodological challenges in conducting and reporting counts. Estimates of the number of people who have died during Syria’sContinue Reading