Suchergebnisse

The Guantánamo prosecution of Abd al-Rahim al-Nashiri, the alleged mastermind behind the deadly USS Cole bombing, highlights an unresolved issue in military commissions: whether the Confrontation Clause of the Sixth Amendment to the Constitution applies to bar hearsay statements of unavailable witnesses. While al-Nashiri's counsel recently moved for the military judge to take judicial notice that the Confrontation Clause applies, it is worth considering that the question may be framed differently. Rather than ask whether the Confrontation Clause applies in a military commission, we may ask whether a "testimonial statement" - the only kind of hearsay evidence that triggers the Confrontation Clause-is a concept consistent with wartime tribunals. This Article proposes that a testimonial statement is a uniquely civilian concept, situating military commissions outside the scope of the Confrontation Clause. The military commission trying al-Nashiri nonetheless preserves the constitutional value of reliability while offering different procedural protections than are offered in federal courts, such as admitting hearsay statements from witnesses made unavailable by war.

The Eleventh Circuit recently issued an opinion in Code Revision Commission v. Public.Resource.Org, Inc. that meditates on the law as much as resolves a dispute. For that reason alone, attention should be paid. A commission acting on behalf of the Georgia General Assembly and the State of Georgia filed a copyright infringement action against a nonprofit organization that had disseminated annotated state statutes. The Eleventh Circuit took these modest facts and delivered a philosophical analysis of the nature of law, finding that statutory annotations are outside copyright protection because the true author of such "law-like" writing is "the People." The court's opinion respects democracy by amplifying the voice of the People. Such amplification works best, however, on narrow facts. Applied broadly, in line with the scope of the court's philosophy, the opinion risks distorting the People's voice by muting intragovernmental disagreements. That voice is more often cacophony than clarion call, and the loudest strain comes from the least representative branch. Focusing on the exercise of sovereign authority, a different area of copyright law supports the same case outcome. The law, along with law-like annotations, is uncopyrightable because its idea and its official expression merge.

The Eleventh Circuit vacated its panel opinion in Patterson v. Secretary and reheard the case en banc. The court's new opinion revisits the prohibition against "second or successive" habeas corpus petitions in 28 U.S.C. § 2244(b) and embraces the dissenting view in the prior opinion, rejecting the reasoning of the majority. A new state court judgment resets the habeas clock, allowing a prisoner to file an additional federal habeas petition without running afoul of section 2244(b). Previously, the court offered an expansive view of such judgments, looking to whether the state court has substantively changed the prisoner's sentence. The court now offers a narrow view, looking only to whether the state court has authorized the prisoner's custody. This Article describes the majority and dissenting opinions in both iterations of Patterson v. Secretary. The Article then identifies both textual and subtextual disputes among the judges, arguing that the opinions are proxies for a deep division in criminal law between finality and justice.

Small-Town GTMO offers a fresh and first-person perspective on Guantánamo legal issues, focusing on the threshold issue of whether the United States can be there at all rather than the more common issue of whether the military base should be used as a terrorist detention site. This book offers a unique combination of analysis and personal narrative to answer a fundamental question: Is there legal justification for the U.S. naval station at Guantánamo Bay?