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Abstract:
The article considers the lessons that may be learned from the military and civilian court experiences with protected information under the provisions of Military Rule of Evidence 505 and the Classified Information Procedures Act. The paper then focuses on the potential consequences for endorsing the use of secret evidence, and we propose an amendment to Article 36(b) of the UCMJ that will more effectively allow Congress to provide a constitutional check on executive power in this area.

secret evidence, CIPA, military commissions

Abstract:
This article addresses the need to establish a standard of criminal accountability under U.S. domestic law for commanders whose soldiers violate the law of war. In the wake of the detainee abuse scandals, the military responded by subjecting only lower ranking service members to military courts-martial. Mid-level and senior military commanders did not face criminal sanctions in spite of the fact that under international law there is a well recognized criminal law doctrine of command responsibility. The article explores the theoretical basis of the command responsibility doctrine, its origins, and its development in the 20th Century as part of the customary international law. The article examines the United States' failure to incorporate a similar doctrine under U.S. domestic law as reflected in the Uniform Code of Military Justice. The article illustrates the serious adverse consequences stemming from the United States' failure to have a legal mechanism to affix criminal responsibility on commanders. The article proposes a comprehensive amendment to the Uniform Code of Military Justice in order to fully incorporate the doctrine of command responsibility into U.S. domestic law. The proposal also offers ways to remedy specific aspects of the doctrine that have remained a source of confusion under international law.

Command Responsibility, Law of War

Abstract:
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.

State Secrets Privilege, Extraordinary Renditions, National Security

Abstract:
This article examines the renewed interest which legal scholars, courts, and practitioners are giving to military justice. In light of this heightened interest, there have been a number of calls to reform the Uniform Code of Military Justice. Specifically, there is pressure to change and reduce the role of the military commander in the justice system. This pressure for change comes in part due to the changes made in the military codes of the United Kingdom and Canada. This paper examines whether the United States should make similar changes. The paper looks in detail at the reasons for the modifications to the military codes of the United Kingdom and Canada, and the specific changes that those countries made. The paper next compares those changes with the approach taken in this country regarding the role of the military commander. The paper also examines some of the possible unintended consequences that come with reducing the role of the commander in military justice. Finally, the paper offers specific recommendations for Congress to consider in making an assessment of the appropriate role for the commander in the military justice system.

Abstract:
This article is a response to an article published in the UCLA Law Review by John Yoo and Glen Sulmasy which argued that the military lawyers violated the principle of civilian control of the military when they disagreed with some of the Bush administration's policies in fighting the War on Terror. In this article, I will first show how Sulmasy and Yoo's view of civilian control of the military is a narrow, inaccurate reflection of the principle. I suggest that when Sulmasy and Yoo refer to civilian control of the military, what they are really arguing for is politicization of the military by one branch of government. Such a narrow view of civilian control of the military is without historical precedent and is, in fact, antithetical to our constitutional structure. In suggesting a more limited role for uniformed lawyers, Sulmasy and Yoo contend that the Global War on Terror is so different from wars of the past that many of the traditional legal norms do not apply. The refrain, 'the events of September 11th changed everything,' has been a constant theme by Bush administration officials to justify any number of actions. While this refrain has been constant, I suggest that both the applicability of the laws of war and the role for military lawyers - with unique expertise in the development and implementation of these laws - are still critical aspects of the War on Terror. This article suggests a more accurate explanation for why military lawyers were opposed to many of the Bush administration's proposals related to the treatment of detainees. Finally, this article will discuss the ethical obligations of military and other government lawyers, a matter not discussed by Sulmasy and Yoo.

national security, separation of powers, war on terror, detainee treatment, military lawyers

Abstract:
The military commissions give us an opportunity to explore and reflect on whether the procedures to try alleged foreign terrorists or the procedures for some future military commission should follow the approach of the Bush administration. Looking back on the evidentiary scheme of the military commissions also gives us an opportunity to reflect on the application of the rules of evidence in military courts-martial and other criminal prosecutions.

To explore these issues, this paper will discuss the Uniform Code of Military Justice (UCMJ) and the Military Rules of Evidence. Why were these provisions created and how were they to be applied within the full spectrum of military operations? The paper will then compare the Military Rules of Evidence generally to the various approaches offered up in the military commissions system. What were the stated reasons for any changes and why did the President ultimately settle on the approach reflected in the Manual for Military Commissions? Are these reasons credible and are there other, perhaps unstated reasons for the rule changes? To the extent that we can determine the reasons for why the evidence rules were changed, can similar rationales apply to other criminal trials in the military context? The paper also asks if we are at an evidence cross-road. Are we at a point where we need to reexamine the way evidence is treated in military criminal cases tried under the UCMJ? For example, should certain combat exceptions be written in to the military rules of evidence? On the other hand, are the recent efforts to depart from the established rules of evidence in military commissions nothing more then an attempt to give the government an advantage over a class of defendants who it deems is not worthy of enjoying full protections of a fair trial?

Evidence, Military Commissions, Military Law, National Security, International Law

Abstract:
The purpose of this article is to explore the Kumho Tire decision and the implications that this trilogy of cases will have on the admissibility of nonscientific expert testimony. The article first discusses the historical development of methods used to evaluate the reliability of expert tesimony. The article next comments on the impact that the federal and military rules of evidence have had on the reliability determination. This section also addresses the impact of Daubert and unresolved questions after Daubert. After discussing Daubert and the associated problems, the article analyzes Joiner and Kumho Tire and explains how the Supreme Court resolved these problems. The article concludes by discussing how these cases will impact the admissibility of expert testimony in the future. Specifically, this section provides advice to practitioners and judges on how to litigate the reliability of nonscientific expert testimony under the Supreme Court's framework.

Rule of Evidence 702, Expert Testimony, Scientific Evidence