From Benjamin Wittes, Lawfare:
It isn’t every day that someone sends me a memo outlining how a four-justice plurality of the Supreme Court got a key historical point wrong in a major case–much less does so convincingly. But that is what the following article by one Haridimos V. Thravalos claims about the discussion in the plurality opinion in Hamdan concerning whether conspiracy has been historically considered a war crime triable by commission. This point is important; indeed, as Thravalos explains, it is currently being contested in the courts. How those cases turn out will determine whether the crime will be available to prosecutors in military commission cases going forward.
It isn’t every day that someone sends me a memo outlining how a four-justice plurality of the Supreme Court got a key historical point wrong in a major case–much less does so convincingly. But that is what the following article by one Haridimos V. Thravalos claims about the discussion in the plurality opinion in Hamdan concerning whether conspiracy has been historically considered a war crime triable by commission. This point is important; indeed, as Thravalos explains, it is currently being contested in the courts. How those cases turn out will determine whether the crime will be available to prosecutors in military commission cases going forward.
