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Category Archives: Legal Research

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:

“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.”

Greenpeace Netherlands Releases TTIP Documents

Via Greenpeace – Annie Leonard. May 2, 2016: “Greenpeace Netherlands released to the public secret documents from the United States’ current trade negotiations with the European Union. The deal is called the Transatlantic Trade and Investment Partnership (TTIP for short) and once it’s agreed upon it will govern the U.S.-European economic relationship for years. YouContinue Reading

POGO – CIA Watchdog Finds Abuses in Use of Independent Contractors

Via POGO: “The Central Intelligence Agency (CIA) broke the law in its use of independent contractors, according to a four-year-old internal review that was declassified and approved for public release in March. The contents of the June 2012 CIA Inspector General (IG) audit report were revealed last week by VICE News reporter Jason Leopold. TheContinue Reading

New on LLRX – Evolutions in DNA Forensics

Via – Evolutions in DNA Forensics – Criminal law expert Ken Strutin’s new article is yet another research tour de force – a collection of recent and notable developments concerning DNA as forensic science, metric of guilt, herald of innocence, and its emerging place in the debate over privacy and surveillance. The increasing useContinue Reading

2017–2022 Outer Continental Shelf Oil and Gas Leasing Proposed Program

Department of the Interior, Bureau of Ocean Energy Management: 2017–2022 Outer Continental Shelf Oil and Gas Leasing Proposed Program – “The Bureau of Ocean Energy Management (BOEM) is responsible for administering the leasing program for oil and gas resources on the Outer Continental Shelf (OCS) and developing a five-year schedule of lease sales designed toContinue Reading

FISA Court did not reject any warrant requests in 2015

Via ZDNet: “A secret court that oversees the US government’s surveillance requests accepted every warrant that was submitted last year, according to new figures. The Washington DC.-based Foreign Intelligence Surveillance Court received 1,457 requests from the National Security Agency and the Federal Bureau of Investigation to intercept phone calls and emails. In long-standing fashion, theContinue Reading

Researchers around the world increasingly turning to pirated papers due to prohibitive publisher costs

Follow up to previous posting, Controversy over free journal access database keeps Sci-Hub in legal and research spotlight, via Science – Who’s downloading pirated papers? Everyone by John Bohannon – “These statistics are based on extensive server log data supplied by Alexandra Elbakyan, the neuroscientist who created Sci-Hub in 2011 as a 22-year-old graduate studentContinue Reading

Judicial Conference Committee seeks to implement wider law enforcement surveillance

Follow up to Supreme Court expands surveillance powers of intelligence agency via EFF – With Rule 41, Little-Known Committee Proposes to Grant New Hacking Powers to the Government – The government hacking into phones and seizing computers remotely? It’s not the plot of a dystopian blockbuster summer movie. It’s a proposal from an obscure committeeContinue Reading

Supreme Court expands surveillance powers of intelligence agency

Via The Intercept: “The Supreme Court on approved [April 28, 2016] changes that would make it easier for the FBI to hack into computers, including those belonging to victims of cybercrime. The changes will take effect in December, unless Congress adopts competing legislation. Previously, under the federal rules on criminal procedures, a magistrate judge couldn’tContinue Reading

OECD, International Organisation of Pension Supervisors (IOPS), and World Bank join forces to improve private pension statistics

“The OECD, IOPS, and World Bank announced today that they are collaborating to help expand global data on private pensions. The OECD and IOPS currently collect a market-leading suite of statistics on private pensions as part of the OECD’s Global Pension Statistics database and annual Pensions Markets in Focus report. Initially the data included OECDContinue Reading to Retire July 5

News from the Library of Congress: “, the online legislative information system, will officially retire July 5, completing the multi-year transition to “The Library is well-positioned for the future with,” said Acting Librarian of Congress David S. Mao. “Free access to legislative information that anyone can search for and read is central toContinue Reading

Facebook Government Requests Report

Report, July 2015-December 2015: “United States Law Enforcement Requests for Data – We respond to valid requests relating to criminal cases. Each and every request we receive is checked for legal sufficiency and we reject or require greater specificity on requests that are overly broad or vague. Total Requests – 19,235 Users / Accounts RequestedContinue Reading