Episode 35: Will This Be the Year of Military Courts at the Supreme Court?

September 12, 2017

Will this year’s Supreme Court term be packed with cases relating to military courts?  In this week’s show, Professors Chesney and Vladeck explore the possibility.  The Supreme Court currently has before it an array of petitions for review involving military court questions.  The Bahlul litigation presents a complex but deeply-important set of questions relating to the ability of the military commission system to adjudicate conspiracy charges, intermixed with procedural questions about the standard of review should the Court choose to get involved.  The Nashiri litigation, for its part, ultimately presents the critical question of whether an armed conflict existed with al Qaeda pre-9/11, and the Supreme Court currently must determine whether that issue should be resolved pre-trial or if, instead, the process must unfold through trial first.  And then there a mix of cases, including a large group of servicemembers who were convicted by court martial, presenting the question whether active-duty officers can serve as judges of the Court of Military Commission Review without violating an 1870 statute that creates a baseline rule against officers serving in civilian government positions.  Whew!  But, hey, if you are not into such questions, perhaps you’ll stick around to find out which band Bobby saw last Friday night, and which football team greatly disappointed Steve on Sunday night!

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